Leave to appeal

In re B (a patient) (Court of Protection: appeal) [2005] EWCA Civ 1293; NLJ 11 November

CPR rule 52.3(1) provides that an appellant or respondent requires permission to appeal: (i) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against a committal order, a refusal to grant habeas corpus or a secure accommodation order made under s25 of the Children Act 1989; (ii) as provided by the relevant Practice Direction. Does this apply to the decision of the judge nominated under Part VII of the Mental Health Act 1983? The origins of the modern Court of Protection date from 1842 with the creation of two Commissioners in Lunacy by the Commissioners in Lunacy Act 1842. The Mental Health Act 1959 provided that there should continue to be an office of the Supreme Court called the Court of Protection and that there should be a master and a deputy master of the Court of Protection. This provision was continued by s93 of the Mental Health Act 1983. When the High Court was created by the Supreme Court of Judicature Act 1873, it was specifically provided that there should not be transferred to or vested in the High Court of Justice by virtue of the Act any jurisdiction in relation to ‘the custody of the persons and the estates of idiots, lunatics and persons of unsound mind’. The requirement for permission to appeal under CPR rule 52.3 applies only to decisions of ‘a judge in the county court or the High Court’ and although a nominated judge derives his position from his office as a judge of the High Court, when exercising his jurisdiction under Part VII of the Mental Health Act 1983 he is not sitting in the High Court. Accordingly, permission to appeal from his decisions is not required.