Judge: Morgan J
Citation:  EWCOP 55
Morgan J had made a detailed substantive order on the papers in mixed health and welfare and property and affairs proceedings concerning Z. In that order:
- The court made a declaration as to Z’s capacity following a consideration of the evidence.
- The order recorded a number of declarations (as to contact and LPAs) to be by the consent of the parties.
- The balance of the order was expressed to be by the consent of the parties.
JK, a son of Z who was not a party to the proceedings, subsequently made an application for the disclosure to him of certain documents which have been filed by the other parties in the course of the proceedings. The application was made pursuant to rule 5.9 of the Court of Protection Rules 2017 and the inherent jurisdiction.
Morgan J held that the inherent jurisdiction of the court “allows the court to give effect to the constitutional principle of open justice and relates to certain documents in certain circumstances.” It was accepted by JK that rule 5.9 exists in order to give effect to the same principle of open justice. By way of reminder, rule 5.9 differentiates between different types of documents:
- Rule 5.9(1) gives a person who is not a party to the proceedings a right to inspect or obtain from the court records a copy of any judgment or order given or made in public.
- Rule 5.9(2) gives the Court a discretion whether to authorise such a person (on application to the court) to:
- inspect any other documents in the court records; or
- obtain a copy of any such documents, or extracts from such documents.
The documents sought by JK were:
- The expert medical reports filed in the original proceedings together with the instructions and material upon which those reports were based;
- Copies of all witness statements filed, together with exhibits (if the latter are part of the court file);
- Copies of any skeleton arguments filed;
- Any documents held on the court record which were relevant to the settlement reached with CD.
In determining this application Morgan J held that the following points were salient:
- While JK was not joined as party to the proceedings, he was bound by the declarations regarding Z’s capacity in the same way that the parties were. He therefore had the right to apply for reconsideration of the order. However without disclosure of the documents had no access to the documents that were before the court when it made the order.
- JK was notified of the proceedings and could have either at the outset or at any later time, become a party to the proceedings. He did not do so. But had he done so, it is likely he would have been joined and the documents disclosed to him.
- The solicitors for AB had on a number of occasions, and in a number of ways, offered to engage with JK to give him information about the proceedings. JK however had not responded to these offers.
- JK relied on the open justice principle which is designed to assist public scrutiny of cases which ought to be heard in public, however, the original proceedings were not dealt with in public and were never going to be dealt with in public. Further, JK did not apply for an order opening up the documents which he sought to public scrutiny but acceptedthat any documents which he was permitted to see must remain confidential.
With respect to the legal framework, Morgan J held that:
- Rule 5.9(1) had no application as JK was not seeking (nor was there) an order or judgment made in public. JK was given a copy of the substantive order made in private.
- The analysis as to what formed part of the Court record was set out in the previous Supreme Court authority of Dring v Cape Intermediate Holdings Ltd  UKSC 38. The judge held that “it would not extend to many of the documents which are sought by JK. In particular, it would not extend to the expert medical reports, the witness statements for the trial or the skeleton arguments.”
Much of the argument and analysis was taken up by consideration as to whether, in proceedings which were held in private, the principle of open justice was in play at all. The court held, after an analysis of the case law, that were the substantive order was made without a hearing in open court, but after the court considered certain documents on the papers, the principle of open justice was engaged in relation to matters which involved a judicial decision. As regards matters which were agreed between the parties and which did not involve a judicial decision, the principle of open justice was not engaged save that there remains a power for the court to permit access to documents filed with the court if there are strong grounds for holding that such access is necessary in the interests of justice. What this meant on the facts of this case was that:
- There was an element of judicial decision making involved in the declarations about capacity and the declarations by consent.
- There was no judicial decision as to who would have succeeded if the disputed matters were to be determined at a trial. Accordingly, in relation to the substantial body of evidence which related to that dispute, the open justice principle was not engaged but there was a power to allow JK to have access to that material if there were strong grounds for holding that it is in the interests of justice to allow him to have access.
Ultimately, the judge was not persuaded that any of the documents should be given to JK and the application was dismissed. The reasons for reaching that decision are entirely fact specific and so are not set out here.
This is a fascinating and detailed consideration of the issues at play in a disclosure application from a person who is not a party to proceedings. The authors are not aware of this having been the focus of a previous judgment.
Importantly, Morgan J was clear (and undoubtedly right) that the decision he was making about disclosure was not a best interest decision, but the best interests of Z fell to be considered when conducting the balancing exercise as to whether to disclose documents.