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Court of Protection Update (Autumn 2016): Part 2

Sally Bradley and Julia Townend, barristers of 4 Paper Buildings, conclude their review of Court of Protection developments by considering recent judgments concerning reporting restriction orders; costs and civil restraint; and participation in proceedings.

Sally Bradley, barrister, 4 Paper Buildings

Julia Townend, barrister, 4 Paper Buildings










Sally Bradley and Julia Townend, barristers, 4 Paper Buildings

In this second update of two, we continue to provide a brief summary of some (not all) of the important Court of Protection cases from this year.

Part 1 of this update, which concentrated on recent important judgments concerning deprivation of liberty and capacity, may be found here.

Continuing from the contents list set out in Part 1, in this second half of the update we address:

3) Reporting Restriction Orders;

4) Costs and Civil Restraint;

5) Participation of P in Proceedings.

3) Reporting Restriction Orders

V v Associated Newspapers Ltd [2016] EWCOP 21

The facts
C had been the subject of Court of Protection proceedings. In his public but anonymised judgment, MacDonald J found that C had capacity to make decisions regarding the administration of life saving treatment. He made comments about C's life and her relationship with her daughters including V. In the course of his judgment MacDonald J noted that C no longer wished to live due to her fear of "becoming ugly" and because her life "lacked sparkle", comments which prompted a great deal of publicity including attempts by journalists to visit C's family. C refused treatment and died.

The application
An application was made by V for an extension to the reporting restriction order granted at the outset of the case which was to expire on C's death. An order preventing the identification of C, V and other family members was sought indefinitely.

It was agreed by all parties that a reporting restriction order should be made, but it was the duration of the same which was in dispute.

The substantive decision
Charles J agreed that the reporting restriction order should be granted, and that it should last until further order, with a view to it covering the reporting of C's inquest. The order may be revisited upon application by the parties on notice.

His reasoning, in summary, was as follows:

M v Press Association [2016] EWCOP 34

The facts
N, aged 68 years and a sufferer of Multiple Sclerosis, was receiving life-sustaining treatment by way of clinically assisted nutrition and hydration via a percutaneous endoscopic gastronomy tube. Previously Hayden J had acceded to N's daughter's application for a declaration that it would be in N's best interests for the life-sustaining treatment to be removed. N died on 16 November 2015.

A reporting restriction order had been made on 2 November 2015, preserving the anonymity of N and her daughter during N's lifetime and for seven days following her death. N's daughter applied to extend the reporting restriction order until a date 14 days after the decision of Charles J in V v Associated Newspapers Ltd [2016] EWCOP 21 and this was granted.

The application
Following the delivery of Charles J's decision on 25 April 2016, N's daughter applied to extend the reporting restriction order 'until further order' following N's death. The application was opposed by the Press Association.

The substantive decision
Hayden J refused the application and allowed N and her daughter to be named. He recognised the challenge in balancing "the intensely personal (grief, loss privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice)" (paragraph 34).

It was held that an individual's death is a matter of public record and that any inquest would be held in public. It was held that there was a public interest in naming N to "make her story more real and the issues it raises more acute".
The question of jurisdiction was not raised (i.e. whether the Court of Protection has powers to grant a new injunction because it relates to proceedings previously before it but by reason of its decision/death of the patient, there is no longer jurisdiction to make the welfare order sought). Hayden J referred to the comments on this point by Charles J in V v Associated Newspapers Ltd [2016] EWCOP 21 but clarified that in considering the application he was sitting as a High Court Judge as well as one in the Court of Protection.

See also Jackson J's decision in UCL Hospitals NHS Foundation Trust v G (by her litigation friend, the Official Solicitor) [2016] EWCOP 28

4) Costs and Civil Restraint

Re A (A Patient) [2016] EWCOP 38

The facts
A's affairs had been managed by the Court of Protection and its predecessor for almost 60 years.

On 28 May 2013 A's niece, C, had been appointed as her Deputy for Property and Affairs. At this stage A's nephew had been particularly litigious, and this resulted in SJ Lush departing from the general rule as to costs set out in Rule 156 of the Court of Protection Rules 2007 and instead making a costs order against A's nephew (such that he was required to pay any costs incurred above £7,500 assessed on the standard basis) as a result of his conduct and his failure to succeed on any part of his case. 

A's nephew sought permission to appeal which was granted by Munby P on two limited grounds:

  1. The issues of the court's jurisdiction and A's capacity to manage her property and affairs; and 
  2. The order for costs made on 28 May 2013.

The first issue was to be determined by Munby P and he authorised the instruction of an expert to assess and report on A's capacity to manage her property and affairs at the date of assessment, and on and since 15 May 2013. A's nephew provided undertakings not to correspond with C and not to personally attend C's solicitors' offices without prior written permission. Upon receipt of the report, A's nephew sought to ask 40 further questions of the expert, and Munby P directed an addendum.

At a capacity hearing on 20 January 2015 Munby P declared that "A lacks and has since 15 May 2013 lacked capacity to make decisions for herself in relation to a matter or matters concerning her property and affairs (the court making no declaration as to whether or not she had such capacity previously)" as a result of A's longstanding schizophrenia and treatment of the same.

Munby P had reserved the costs of various of the hearings and provided that there be liberty to C to apply on notice in relation to them.

The application
C's solicitors made an application in relation to the costs reserved. The next day A's nephew responded by letter stating his intention to apply for the committal of C's solicitor for alleged contempt of court and for a wasted costs order against C's solicitors. In consequence of A's nephew's applications against C's solicitors, the solicitor/firm was not able to go on acting for C. New solicitors were instructed on behalf of C in their place.

The substantive decision
On 16 March 2016 Munby P dismissed A's nephew's committal and wasted costs applications against C's former solicitors as being totally without merit. A's nephew was ordered to pay the costs of C's original solicitor in relation to the committal application on an indemnity basis, summarily assessed in the sum of £55,000 inclusive of VAT and in relation to his wasted costs application on an indemnity basis, summarily assessed at £37,000 inclusive of VAT.

The following day Moylan J granted C's former solicitors an interim charging order to cover both costs orders in relation to A's nephew's interest in his former matrimonial home.

As to C's application for costs, the court rehearsed the various costs warnings proffered to A's nephew during the proceedings. Munby P reserved judgment in relation to various of the reserved costs, but held as follows:

  1. A's nephew's appeal against SJ Lush's costs order of 28 May 2013 was allowed, and Munby P exercised his discretion afresh and ordered A's nephew to pay C's costs in excess of £7,500 on the standard basis. 
  2. Munby P ordered A's nephew to make an interim payment of £60,000 inclusive of VAT on account, and made an interim charging order in the sum of £60,000 in respect of A's nephew's interest in his former matrimonial home.  
  3. There would be an extended civil restraint order until 21 March 2016, restraining A's nephew from issuing claims or making applications in any court concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made or the subject matter of, or any application or proposed draft application therein. Excluded were A's nephew's proceedings with his wife in the family court, and certain proceedings brought against him in the Chancery Division.

On 24 March 2016 Munby P notified the parties of his decision as to the balance of C's application. A's nephew was ordered to pay some of the costs claimed. Two further interim payments were directed of £7,000 and £16,000, both inclusive of VAT. An interim charging order in the sum of £23,000 was also made in relation to A's nephew's interest in his former matrimonial home.

Re A (A Patient) (No 2) [2016] EWCOP 39

That was not the end of it. A supplementary judgment of Munby P was handed down addressing issues which were raised following the release of his judgment in Re A (A Patient) [2016] EWCOP 38.

A's nephew had sent to the court numerous emails raising various matters, including the changing of Munby P's email address. Munby P clarified that his continued involvement was limited to the following, and that he did not propose to respond to further correspondence:

  1. Finalisation of the outstanding orders.
  2. The observations, if any, which A's nephew might wish to make as to whether the judgment should or should not be published. 
  3. Any application for permission A's nephew might wish to make in accordance with the ECRO.

A's nephew wrote back again with various assertions, including that Munby P had significant duties to him as a litigant in person.

Munby P's addendum judgment dealt with the numerous issues raised. Interestingly, he held that A's nephew was wrong to assert the judicial duty to him as a litigant in person for two reasons:

"(1) it is the obligation of someone who chooses to act as a litigant in person to acquaint himself with and to comply with the procedure and any relevant rules; and

(2) it is not the function of a judge to give advice to a litigant, whether or not acting in person".

See also V v Associated Newspapers Ltd & Ors [2016] EWCOP 29 (above) which deals with costs following an application for a reporting restrictions order (that judgment being detailed in this update). V was unsuccessful in persuading Charles J to depart from Rule 157 of the Court of Protection Rule 2007 by making a costs order on an indemnity basis.

5) Participation of P in proceedings

A County Council v AB & Ors (Participation of P in Proceedings) [2016] EWCOP 41

The background
AB had severe disabilities and impairments. This was not a borderline capacity case. A fact finding hearing was shortly to take place in relation to AB, and in advance of that six questions were asked by the Official Solicitor, acting as AB's litigation friend, paraphrased as:

  1. Whether the decision as to whether P in proceedings in the Court of Protection should attend court is a decision for the litigation friend as part of the conduct of proceedings, or a best interests determination for the court.
  2. Whether the decision as to whether P in such proceedings gives evidence is a decision for the litigation friend as part of his conduct of the proceedings or a best interests determination of the court.
  3. What the test of competence in Court of Protection proceedings is. 
  4. Whether P is competent to give evidence according to that test. 
  5. If it is the court which must decide whether P must attend court, whether it is in AB's best interests to do so in this case. 
  6. If it is the court which must decide whether P should give evidence, whether it is in AB's best interests to do so in this case.

The Official Solicitor contended that the litigation friend is the key decision-maker in relation to P's active participation in Court of Protection proceedings. The court has only a residual duty to overrule this decision-making by removing the litigation friend pursuant to Rule 144 of the Court of Protection Rules 2007. The local authority and P's parents opposed P giving evidence or addressing the court other than by way of informal meeting with the judge.

The substantive decision
Various of the Court of Protection Rules 2007 were considered by HHJ Rogers in the course of his judgment, including Rule 88 (dealing with the participation of P in hearings), Rule 95 (dealing with the court's power to control evidence) and Rule 96 (the general rule that evidence of fact needs to be proved by evidence of a witness). Ultimately it was held that a litigation friend has a wide breadth of discretion as to the conduct of litigation and the court should only intervene in extremis.

HHJ Rogers decided that he did not need to make a best interest declaration to prevent AB's participation. AB should attend the hearing and should attempt to participate. He could be tendered for questioning which could be curtailed if necessary, even at an early stage. A judge has a duty to find the facts and evaluate the evidence or information provided.

At paragraph 49 HHJ Rogers summarised his responses to the Official Solicitor's questions:

  1. The litigation friend has a pivotal role in the conduct of the litigation and should not be supervised or micro-managed by the court.
  2. The court nevertheless retains the ultimate power to dismiss a litigation friend. 
  3. A litigation friend can decide whether P attends a hearing and tries to participate.
  4. The court has no general power under the Court of Protection Rules 2007 or case management powers to exclude P. Good practice suggests that a constructive dialogue between the litigation friend and the court will be helpful and almost always will achieve practical consensus. 
  5. The Court of Protection is governed by civil rules of procedure and evidence albeit that specific rules in the Court of Protection have been made. As it is a dynamic jurisdiction it has immense flexibility. Whilst there are helpful parallels to be drawn between the approach in Children Act proceedings and Criminal proceedings, HHJ Rogers was not prepared to import section 53 of the Youth Justice and Criminal Evidence Act 1999 into this jurisdiction; that is in the end a matter for Parliament. 
  6. The key provision remains there already, namely Rule 95(e) of the Court of Protection Rules 2007 and the court's ability to have information provided by P is wide and flexible. 
  7. The court does have the residual power to make best interests decisions on the wider issues it raised.