I v D (by his litigation friend the Official Solicitor)
Judge: Senior Judge Lush
Citation:  EWCOP 35
In this case, his last reported decision, Senior Judge Lush was dealing with an application to dispense with service of an application to make a statutory will on a person who was entitled to a half share in P’s estate and would be disinherited by the proposed statutory will.
The matter came before the Senior Judge by way of an appeal but the procedural history is not relevant for the purposes of the decision. So far as the facts and the result are concerned they, too, are not of general interest.
P had received a substantial personal injury award and his mother had been appointed receiver (in the days before professional deputies) and was subsequently appointed deputy. P’s mother applied for a statutory will. She also applied for service on P’s father to be dispensed with on the ground that P’s father had had no contact with him and his whereabouts were unknown. The Senior Judge refused the application to dispense with service as there was no urgency, P’s father had the right to be heard and he was not impressed with the efforts made thus far to locate him.
Of general interest, the Official Solicitor asked the Senior Judge to give guidance on the principles to be applied when the court to dispense with the service required by paragraph 9 of PD9F.
The latter provides:
The applicant must name as a respondent:
- any beneficiary under an existing will or codicil who is likely to be materially or adversely affected by the application;
- any beneficiary under a proposed will or codicil who is likely to be materially or adversely affected by the application; and
- any prospective beneficiary under P’s intestacy where P has no existing will.
The guidance suggested is at paragraph 40 of the judgment and the Senior Judge approved it at paragraph 44. It is as follows.
The Official Solicitor submits that, where the court is faced with an application to dispense with service on a materially affected party the following matters should be considered by the court:
- A decision by the court to dispense with the service of an application on a person who would otherwise be entitled to it is not “an act done, or decision made, under [the Mental Capacity Act 2005] for or on behalf of P” within the meaning of section 1(5). It is therefore not a decision which is to be determined only by reference to an assessment of P’s best interests.
- The court’s decisions on procedural matters should be considered with regard to the obligation to give effect to the overriding objective set out at rule 3 of the Court of Protection Rules 2007. This makes clear that dealing with a case justly includes
- ensuring that it is dealt with expeditiously and fairly
- ensuring that P’s interests and position are properly considered. Although P’s best interest may be relevant to the court’s decision to dispense with service, unlike a decision which is being taken for or on behalf of P, they are not determinative;
- dealing with the case in ways that are proportionate to the nature, importance and complexity of the issues;
- ensuring that the parties are on an equal footing;
- allotting it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases.
- The court should recognise that a decision to dispense with service on an individual otherwise entitled to it may engage that individual’s rights under the European Convention on Human Rights, especially articles 6 and 8. In any event, P’s own Convention rights are certainly engaged. More broadly, even if Convention rights are not engaged, issues of procedural fairness arise.
- A decision to dispense with service on an affected party will mean that the court may have to decide the substantive application without all the relevant material before it.
- Any decision to dispense with service on an individual will be taken by the court on the basis of untested evidence. The apparent merits of the substantive application should not be used to justify dispensing with service.
- Fears about the consequences to P or the applicant of service on the individual in question can in many ways be ameliorated by the use of the court’s powers under rule 19 to redact relevant details, such as addresses.
- The consequences of the application succeeding to the individual who is not to be served should also be considered.
- Before a decision is taken to dispense with service because of practical difficulties, consideration should be given to the possibility of effecting service by means of an alternative route under rule 34.
- Matters of procedural fairness should be given a high regard, and it is submitted that cases where it is appropriate to dispense with service on an individual who is directly and adversely affected by an application are likely to be exceptional.
- Different factors may apply in cases where the application is to dispense with service on P or where there is genuine urgency and there is a need to balance the prejudice of proceeding in the absence of an affected party against the prejudice to P or another party of not proceeding at all.
It is quite clear from the decision in this case, the guidance set out above and previous authority, that service in accordance with paragraph 9 PD9F will rarely be dispensed with outside cases of genuine urgency. The decision also, separately, marks the end of an era with the retirement of Senior Judge Lush, who was the subject of an appreciation by Penny Letts in our last issue, and whom we wish very well in his well-earned retirement. The Court of Protection will be much the poorer for the loss of his knowledge, experience and wisdom.