‘The Court of Protection exists for P’s benefit. Transparency must support justice, not overwhelm it’.

39 Essex Chambers’ barristers Alex Ruck Keene KC (Hon) and Eliza Sharron appeared for the Appellant in this important judgment, Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2025] EWCA Civ 640, in which the Court of Appeal overrules the guidance set down by Mr Justice Poole in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3), regarding the provision of position statements to observers. 39 Essex Chambers’ barrister Katie Scott appeared for the Official Solicitor, intervening in her own right.

Sir Stephen Cobb, the new President of the Court of Protection, giving the lead judgment, provided a summary of his conclusions at paragraph 12, as follows: (emphasis added)

i. Court of Protection proceedings are private by default (rule 4.1 of the Court of Protection Rules 2017) (‘COPR 2017’), even where the court directs that hearings are to be held in public under rule 4.3 of the COPR 2017. Many hearings in the Court of Protection are of course in public, but a direction for a public hearing does not convert the proceedings into “public proceedings” equivalent to litigation in the civil courts or tribunals.  The judge below erred in treating the proceedings as public simpliciter and in importing openness principles from jurisdictions which are public by default;

ii. Once lodged, position statements are “court records” within the meaning of rule 5.9(2) of the COPR 2017 (following Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629) (‘Dring’). However, they are not automatically disclosable to observers or non‑parties, and court authorisation is required for disclosure of them to non‑parties under rule 5.9(2) COPR 2017;

iii. Open justice does not entitle observers to access all material informing judicial decision-making. Access to documents must be justified by a demonstrable application of the open justice principle, not by curiosity, research, education, or personal interest;

iv. Disclosure of position statements which cite highly personal source material from the written evidence is a serious interference with Article 8 ECHR rights; in this case, the court failed to engage with rule 5.9(4) COPR 2017 and specifically consider whether disclosure should be: refused, redacted, or subject to use restrictions (e.g., in relation to source evidence);

v. The procedure for disclosing position statements to members of the public should be considered as a matter of priority by the ad hoc Court of Protection Rule Committee (‘COPRC’); in the meantime, the guidance offered by the Judge at [J2/36] should not be followed; the court should in the meantime consider disclosing case summaries, chronologies and lists of issues to observers who request information;

vi. The Court of Protection exists for P’s benefit. Transparency must support justice, not overwhelm it.

A number of important practice points arise:

1. Applications for position statements by observers should be made early so that the issue can be addressed in advance of hearings.
2. Whether to grant disclosure is an issue for the Judge and not the parties.
3. The court may decline to deal with requests/disputes regarding the provision of position statements during a hearing, or guillotine the time allocated to the issue, insofar as is necessary to enable the substantive issues to be dealt with at the hearing.
4. Practitioners should re-familiarise themselves with Practice Direction 4B which deals with the preparation of Case Summaries, Chronologies and Schedules of Issues. Practitioners should considering preparing, at the start of proceedings, a short, neutral and anonymised Case Summary, Chronology and Statement of Issues, which can be periodically updated as required. Practitioners may also wish to consider other means of promoting transparency (such as oral openings and written judgments) may also be considered.
5. Practitioners should also familiarise themselves with the analogous transparency provisions in the Family Court (in particular, PD12R FPR 2010. PD12R), in particular, the restrictions on how source evidence is treated (4.11), and how data will be protected (4.10(B).