A Local Authority v TA, XA, GA (by her litigation friend, the Official Solicitor ) and SR (GA's deputy for property and financial affairs)

Summary

In this judgment Cobb J considered two discrete issues in respect of a litigant in person ("TA") whose challenging behaviour had meant that progress of the proceedings relating to P's care had been slow. The issues were:

• Whether TA could record the hearings in the Court of Protection; and,
• Whether an order was required restricting TA's contact with the Court of Protection court office.

As to recording, TA sought the court's permission on the basis that he, as a litigant in person needed to revisit the issue discussed in court and that he could not be expected to take handwritten notes whilst making full representations to the court. He made various arguments in respect of breach of his human rights and allegations of censorship. He made the point that he was not "in court" and was "outside the jurisdiction of the court"; and therefore could record conversations, if he wished.

Cobb J reminded TA that, whilst he was not physically in the court building, he was "every bit as much 'in a court' on the video platform." Cobb J refused TA's application to record the hearings, because he saw no reason to depart from the normal procedure in respect of recordings. He further made three observations:

• Whilst the Court of Protection is not specifically included in the list of courts to which section 55 and schedule 25 of the Coronavirus Act 2020 ("the 2020 Act") applies (namely in section 85D(2) of the Courts Act 2003), the statutory criminal prohibitions in respect of making, or attempting to make, an unauthorised recording of the proceedings are to be included in every standard order, accompanied by a penal notice and punishable by contempt proceedings. That is in accordance with the guidance issued by Hayden J (Vice President of the Court of Protection) on remote hearings.
• In any event, it would be contempt of court, punishable by imprisonment, for any party to record a hearing without permission of the judge (see section 9 of the Contempt of Court Act 1981). There is a discretion to permit recording in circumstances (see Practice Direction (Tape Recorders) [1981] 1 WLR 1981) but Cobb J was not persuaded that TA demonstrated a reasonable need for such a recording.
• There is also a standard form transparency order in place, which prohibits the reporting of any material which identifies, or is likely to identify, that GA is the subject of proceedings; any person as a member of the family of GA; that A Local Authority is a party; and where GA lives. The content of video-recordings of the proceedings is controlled by s 12(1)(b) of the Administration of Justice Act 1960 and may not be published unless publication falls within the exceptions contained in Practice Direction 4A, paragraphs 33 to 37. He was satisfied that there would be a "publication" whenever the law of defamation would treat it as such, which includes most forms of dissemination, whether oral or written: Re B [2004] EWHC 411 at [82(iii)]. Thus, TA posting the recordings on a private YouTube channel constituted publication.

On the second issue, an order was sought at the court's own motion restricting TA's contact with the Court of Protection court office. The operations manager at the court office had filed a witness statement, which detailed the number of emails and the amount of correspondence from TA amounting to approximately 130 pieces of correspondence per month or 4.5 per day. TA had also made 39 COP9 applications over a 24-month period. The emails are copied into multiple recipients (with up to 100 on some occasions). TA would sign off the emails with his name followed by some epithet, including "Diligent and persistent as ever", "Not a Gentle Knight", "WikiLeaks Wannabe", "DPA [Data Protection Act] Pioneer", or "Leviathan Terminator". TA denied that his correspondence was excessive, inappropriate or intemperate.

Cobb J determined that there was no justification for the volume or tone of much of his correspondence; and his contact with the court office was wholly disproportionate to the issues in the various proceedings. He considered, inter alia, the obiter comments of King LJ in Agarwala v Agarwala [2016] EWCA Civ 1252, particularly:

Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.

Cobb J accordingly proposed to make an injunction, pursuant to the power invested in him by section 47(1) of the Mental Capacity Act 2005, restraining TA's communication with the court office. He noted that the order was exceptional, but it was entirely justified by the facts of the case (para 28):

There is a substantial risk that the process of the court will continue to be seriously abused, and that the proper administration of justice in the future will be seriously impeded by TA unless I intervene now with appropriate injunctive relief.

Comment

Cobb J's decision is an important reminder to both litigants in person and legal representatives alike that remote hearings are still very much ordinary court proceedings, even if they are not taking place in the physical building; and therefore the usual restrictions in respect of contempt apply.

In terms of the restriction in contact with the court order, it is perhaps of note that Cobb J specifically made the order pursuant to section 47(1) of the MCA 2005 (rather than sitting as a High Court exercising the inherent jurisdiction) so that it is open to Tier 1 and 2 judges sitting in the Court of Protection to make such orders in exceptional circumstances. He also usefully set out the terms of the order at the foot of his judgment.