“There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.” may take the view that the case raises an issue where the law requires clarifying.”
“60. Ms Paterson submits “it would be incongruous and illogical if another interpretation could be attached to s. 39 SOA, given the similarity of the wording to that in ss 10 and 17 SOA.”
“31. I start with the parties' proposed answer to the jurisdiction question, namely section 53 of the MCA 2005. This sets out the rights of appeal in cases under the Act. It provides: "(1) Subject to any provisions of this section, an appeal lies to the "(1) Subject to any provisions of this section, an appeal lies to the Court of Appeal from any decision of the court." 10. One need look no further than this, argued the parties, because a 11. "decision" is not synonymous with a "judgment or order" and the 12. President's rulings in his judgments were "decisions" of the Court of 13. Protection, attracting an appeal to the Court of Appeal. This submission necessarily involved an implicit assertion, I think, that the President himself had jurisdiction to rule as he did, on the basis that judges sitting in the Court of Protection are not restricted to making conventional orders but can make "decisions" and that is what he was doing.” 14. Black LJ continues, at paragraph 39: “39. Elsewhere in Rule 89, "decision" is used in what may be a slightly different way. For example, Rule 89(5) provides that where an application is made in accordance with Rule 89, the court may "affirm, set aside or vary any order made". The court's determination under Rule 89(5) is then referred to in Rule 89(7) and (8) as "a decision made under paragraph (5)", although in Rule 89(9) a decision under paragraph (5) seems to be aligned again with an order, the provision beginning: "(9) Any order made without a hearing or without notice to any person, other than one made under paragraph (5)….. " 40. The appeal provisions of the Rules are no doubt particularly worthy of examination, having been made under section 53 itself. Again they reveal a mixture of language.” 15. Later she observes, at paragraph 42: “42. Having surveyed the Act and the Rules as a whole, I cannot accept that those responsible for drafting section 53(1) intended the word "decision" to have the special, wider meaning for which the parties contended, and in particular to confer appeal jurisdiction in a case such as the present. The general context of applications under the MCA 2005 does not support this any more than does the wording of the Act and the Rules. The purpose of the Act is to allow decisions to be taken for individuals. It proceeds upon the basis that there is an individual who lacks capacity, "P". It is P and certain others associated with him who can apply without permission to the court for the exercise of its powers under the Act (section 50(1)). Anyone else must seek permission to apply and the court determining that application must have particular regard to the position of the person to whom the application relates (section 50(2) and (3)). There are applicants and respondents in the proceedings just as there are in other forms of litigation. In that context, in my view, "decision" cannot mean just any decision made by the Court of Protection; it must mean a decision taken in a lis involving P or in some way about P. If the meaning of the word was intended to be broader than that, distancing the role of the Court of Protection so far from the normal role of courts as to enable the judges of that court to decide points of law and practice on a hypothetical basis, that would, in my view, need to have been clearly indicated in the Act and/or the Rules. I can detect no such clear indication.”