Judge: Ward, Carnwath and Tomlinson LJJ.
Citation:  EWCA Civ 756
The Official Solicitor appealed on behalf of P against an order made by Hedley J permitting the Independent newspaper to attend hearings in a welfare case in the Court of Protection. The application by the Independent was sprung on the parties on the day of a directions hearing, as a result of the newspaper’s erroneous belief that simply emailing an application to Archway would result in that application being issued and copies served on all parties. The Official Solicitor and the statutory bodies responsible for P were therefore disadvantaged by not having been able to obtain evidence about the effect on P of his case being reported by the press. By the time of the Court of Appeal hearing, an expert report had been obtained which said – materially – that P would be unlikely to recognise himself if he read the anonymised account of the hearing that had already been published by the Independent, but that the more press coverage that was given, the greater chance of P becoming aware that details of his personal life were being shared with the media, which would in turn contribute to a sense of distrust and seriously undermine his care plan and the developing of therapeutic relationships.
The Court of Appeal upheld the ex tempore judgment of Hedley J, saying that the judge had correctly applied the two stage test (whether there is good reason for the media’s application, and if so, whether the public interest in freedom of expression outweighed P’s interest in maintaining the privacy of his personal affairs) and had reached the right conclusion.
The Court of Appeal expressly declined to give any general guidance about media applications to attend and report on Court of Protection hearings, but did say that in P’s case:
This decision is important because, notwithstanding the Court of Appeal’s statement that they had not opened the floodgates to media involvement in welfare cases, it is difficult to see how (given this approach) the Article 8 rights of P in any case could outweigh the Article 10 considerations provided that reporting restrictions and injunctions can be drafted which, if complied with, greatly reduce the risk of any adverse effect on P. If it is right to allow press attendance and anonymised press coverage in a case where the expert evidence is that P’s care will be seriously undermined should he become aware of the media’s involvement, what would have to be shown to tip the balance in the other direction? Perhaps in any case where there is a chance of media interest (for example because of the strong views of a family member, the questionable conduct of a statutory body, or the circumstances of the case itself) those concerned for P’s welfare should come to every hearing armed with expert evidence about not only the impact on P of media coverage of the case, but also the prospects of restrictive reporting requirements and injunctions being implemented and adhered to. Certainly, it appears from this judgment that the Court of Appeal is keen to leave the decisions to the High Court judges. Acquiring expert evidence after the event, as occurred here due to the lack of advance warning of the press application, is far from ideal, and as soon as any press coverage is given, it becomes harder to argue that future hearings should be in private.
While it is obviously a good thing for perceptions of the Court of Protection as a secretive court to be addressed through increased media involvement, and while Hedley J was surely right that well-informed press reporting is better than ill-informed coverage, the authors cannot shake off a faint feeling that something may have gone wrong when the price of press involvement in this particular case is the imposition of extensive and serious measures (including an injunction against his mother) to make sure that P is kept completely in the dark.
Furthermore, the authors also note that this case is another in the line suggesting a shift in approach from those cases decided regarding media reporting prior to the enactment of the MCA, when the Courts appeared to be more concerned about P’s inherent interest (whether under Article 8 ECHR or otherwise) about securing the privacy of sensitive material regarding him (e.g. medical records). On one view, it would appear somewhat odd that journalists would have access to (or knowledge of the contents of) these very sensitive documents simply because P is before the Court of Protection. Put another way, in ‘conventional’ litigation, P will have a degree of choice as to whether (1) to bring or defend such litigation; and (2) whether to disclose such sensitive documents. This would inevitably then act as a further filter upon reporting of such material. In proceedings relating to P’s best interests, P almost invariably will not have had the capacity to exercise any choice as to the bringing/defending of the litigating or the disclosure of the documents; the further filter/safeguard for P regarding reporting of sensitive material relating to him is therefore removed.