Consent and the passionate judge
The Court of Appeal handed down a judgment yesterday in a case with an unfortunate history. Mr Justice Mostyn, sitting in the Court of Protection originally rejected the parties’ agreed analysis of the law in the case of Rochdale Council v KW, namely that KW was deprived of her liberty on a proper analysis of Cheshire West. KW appealed, and Rochdale did not resist the Appeal, submitting a skeleton argument explaining why the Judge was wrong. The Appeal was granted by consent with a short narrative explaining the decision. Mr Justice Mostyn then listed the case before him and refused to acknowledge that the Order of the Court of Appeal required him to find that KW was deprived of her liberty, therefore requiring him to list a review in 12 months time. Once again KW appealed, and once again Rochdale agreed the appeal to should be allowed. Today the Master of the Rolls has stated that 1) Appeals can in the right circumstances be allowed by consent, even in cases such as this involving the basic rights of individuals; 2) the first instance judge was wrong to interpret the order as not determining whether KW was deprived of her liberty- it did; 3) the judge’s “passionate view that the legal analysis of the Cheshire West is wrong is in danger of distorting his approach to these cases” and should not hear the review in this case.
To download a copy of the Judgement click here