Disagreement with evaluative judgments are not grounds for appeal. Permission to appeal refused: Emma Sutton successful for the respondent Public Guardian in Riddle v Public Guardian  EWCOP 38
11th June 2021
On 19 May 2021, Lieven J determined the renewed oral application of Andrew Riddle for Permission to Appeal the two judgments of Senior Judge Hilder dated 11 August 2020 and 4 September 2020. They are reported as The Public Guardian v Andrew Riddle (No1) and (No2)  EWCOP 41.
The litigation is particularly complex, but in short, the court at first instance had to consider some 40 cases in which Mr Riddle, who is a professional deputy, but not a solicitor, sought authority to charge fees at solicitor rates or a specified rate. In the original judgments, Senior Judge Hilder refused Mr Riddle’s application to charge rates higher than the Local Authority rate, and also refused his application for retrospective authorisation for the solicitor rates he had been charging his clients without authority.
The 4 grounds of appeal can be summarised as the Judge having:
- Erred in concluding that Mr Riddle’s qualification, experience, and business structure did not justify a specified rate on a general basis;
- Erred in concluding that Mr Riddle’s qualification, experience, and business structure did not justify a specified rate on a specific basis;
- Erred in refusing to grant Mr Riddle’s application for relief from liability for past charging;
- Erred in refusing Mr Riddle’s application for the Public Guardian to pay his costs associated with responding to the revocation applications.
In a comprehensive judgment, the court determined that each of the 4 grounds did not reach the threshold for permission to appeal set out in rule 20.8(1) of the Court of Protection Rules 2017 – namely that there was no reasonable prospect of success, and no other compelling reason why the appeal should be heard.
Paragraphs 7-8 and 13-34 provide a helpful legal framework regarding appeal hearings, renumeration of deputies and retrospective authorisation.
Points to take away from the judgment
- The whole tenour of the judgment relates to Mr Riddle’s arguments being a result of his disagreement with the Judges’ evaluative judgement and the weight she attached to various evaluative matters. In particular, at paragraph 37, Mrs Justice Lieven emphasises that ‘Those are things for the first instance judge, and subject to any misdirection (of which there was none), this is not a matter that the appeal court should interfere with’;
- Judgments must be read as a whole, and it is wrong to focus on extracts of a judgment without seeing the broader context (paragraph 10);
- Cumbria County Council v A  EWCOP 38 does not change the law in any way. It simply provides a number of indicators of when it may be appropriate to appoint a professional deputy. The decision is ultimately a matter for the court having regard to the individual facts of a case (paragraph 41);
- If an order is made refusing SCCO assessment, the appropriate route (if made without a hearing) is to seek reconsideration. It is not an appeal point (paragraph 43);
- The starting position is that a Judge has a wide discretion regarding costs, and the appellate court should be very slow to intervene (paragraph 53);
- In litigation which ‘evolves’ (in terms of the number of issues and the number of applications concerning differing P’s) it may not be possible to set out all of the grounds in one overarching letter before action, and a failure to engage in pre-action conduct (in such circumstances) may not be an appropriate criticism (paragraph 54).
Emma Sutton appeared on behalf of the Public Guardian instructed by Baljit Dhillon-Sidhu, senior lawyer within the Legal and Information Team. The judgment can be found here.
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