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Z, Re [2019] EWCOP 55

Principles of open justice and their application to cases conducted in private

In November 2019, Mr Justice Morgan, on the invitation of the parties, made a detailed order in relation to Z settling proceedings.  This included a declaration that Z lacked capacity to manage his property and financial affairs, and various other provisions by consent including declarations in settlement of a dispute within the family regarding powers of attorney.  That order was made on consideration of the papers and without a hearing.  All other hearings had been in private. 

This judgment considered an application by JK (a son of Z) under Rule 5.9 of the Court of Protection Rules 2017 (a court may authorise disclosure of documents and court records to a non-party) and under the inherent jurisdiction for disclosure to him of certain documents which had been filed by the other parties in the course of proceedings.  Despite having been put on notice of proceedings, JK had not applied and did not apply to be joined. 

The inherent jurisdiction allows the court to give effect to the constitutional principle of open justice and relates to disclosure of certain documents in certain circumstances. It was accepted that rule 5.9 existed in order to give effect to the same principle of open justice [para 7]

The respondents were AB - the wife of Z, CD - Z's brother and EF and GH, Z's daughters

The judgment considers what is included in the description "court records" and distils principles from the case of Dring v Cape Intermediate Holdings Ltd [2019] 3WLR 429 that are applicable [para 19] to the consideration of 'open justice principles' and their application.

On the question of whether the principles of open justice were engaged given that there had been no hearing in open court, the court held that the principle of open justice was engaged in relation to matters involving a judicial decision on the papers but not in relation to matters that were agreed between the parties.  In relation to the latter, the court retained a power to permit access to documents filed with the court if there were strong grounds for holding that such access was necessary in the interests of justice.  Section 1(5) was not relevant to the application [27] so the best interests of Z were not determinative but were a relevnt consideration. 

The Court went on to review the events leading to JK's application and in particular an instance where he had interacted with Z and behaved in an inappropriate way in the light of the medical evidence regarding Z [para 62-65].  The court then considered the application for disclosure in relation to 3 aspects of the order:

1) documents relevant to the judicial decision regarding capacity

2) documents relevant to the declarations made by consent regarding the power of attorney – which involved some judicial decision making (whether it was in Z's best interests to make that declaration) but no decision making in relation to the underlying dispute because that had been resolved by the parties

3) Documents relating to other matters ordered by consent

The Court held in relation to these 3 aspects:

In relation to 1) JK already had the 2 most recent medical reports from the expert prepared for the disclosure application.  What was relevant was Z's capacity at the time of the hearing, which JK now had.  He did not seek to challenge the declaration of capacity.  The court was not satisfied that JK had established grounds for disclosure of the previous reports

2) The court was not convinced there were strong grounds, or indeed any grounds supporting disclosure of the documents relevant to the underlying dispute over the power of attorney given that the family had now resolved that issue. 

3) Open justice principle not engaged in relation to the other matters ordered by consent, and no grounds to support a decision that disclosure of other documents were necessary in the interests of justice.

Case summary by Martina van der Leij, barrister, Field Court Chambers

Read the full judgment of Z, Re [2019] EWCOP 55 on BAILII