CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (6 March 2019)

CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 (06 March 2019) 

 

Kate Churchouse for Bison Solicitors acted for the appellant (CB) by her litigation friend the Official Solicitor in an appeal to a Tier 3 Judge of the High Court against a decision of a Tier 2 Judge in the Court of Protection within s.21A proceedings. The appeal considered the circumstances under which it is appropriate to give summary judgment in proceedings when a person's Article 5 rights are engaged. The position of the Official Solicitor was that the Judge at first instance had erred by giving summary judgment at a directions hearing on 8 November 2018 without any prior notice to the parties and that her judgment was formed an opinion based on assumptions rather than evidence. The argument put forward on behalf of CB was that while the judge had the authority to summarily dismiss the application, she incorrectly exercised the judicial discretion in a manner that was wrong and unjust. Mr Justice Hayden delivering his judgment allowed the appeal recording ‘what is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases.’

Bison Solicitors instructed Oliver Lewis of Doughty Street Chambers who represented CB at both the permission hearing and the appeal hearing