W v P

Summary

The person at the centre of this matter, ‘P,’ was an unnamed person who had previously been in the public eye, and significant wealth. P was now elderly, had severe dementia and was unable to communicate; he appears to have lost capacity to make decisions as to his property and affairs and execute a will. His wife, ‘W’, made an application to the Court of Protection that a statutory will be made for estate planning purposes, with the support of P’s family.

For reasons which are not explained in the judgment, P was joined to the proceedings, and the Official Solicitor was appointed P’s litigation friend; an attended hearing was listed. Prior to that hearing, W made an application to the court not to make the standard order pursuant to Practice Direction 4C that the attended hearing should take place in public prior to hearing W’s submissions on this issue. Rajah J heard this application in a private hearing, which took place without notice to the media.

Rajah J worked through the relevant framework for private and public hearings in the Court of Protection:

• COPR 4.1 sets a general rule that all Court of Protection hearings are heard in private, but the Court has a power under COPR 4.3 hold hearings in public. If no order is made to list a Court of Protection hearing in public, it will be heard in private. No reporting restrictions are required for private hearings, as “[p]ursuant to section 12(1)(b) Administration of Justice Act 1960 it is a contempt of court to publish information relating to Court of Protection proceedings where the court is sitting in private” (paragraph 6)
• Practice Direction 4C has effectively reversed the ‘normal’ position by creating a ‘supposition’ (paragraph 11) that hearings are to take place in public with reporting restrictions granting anonymity to P and P’s family.

Mr Justice Rajah considered that there was not a legitimate public interest in W’s application which outweigh P’s Article 8 privacy interest, and effective reporting restrictions could not be drafted which would protect P’s identity:

13. In this case, a public hearing which identified P would inevitably result in significant publicity to satisfy public curiosity. That would be a serious intrusion in the private life of P and his family. For reasons on which I will not elaborate here, this could have serious consequences for P and his family. The "supposition" that a transparency order would protect P's privacy is, in this case, displaced. I am satisfied that it is not possible to craft reporting or other restrictions which would protect P's identity and the privacy of P and his family. There is a very significant risk of jigsaw identification unless the reporting restrictions (and other measures such as exclusion of the public from parts of the hearing) were so stringent as to make a public hearing meaningless. This substantially outweighs any legitimate public interest in this hearing being in public, even with reporting restrictions, and amounts to a good reason for the matter to be heard in private.

14. It is for essentially the same compelling reasons that I have reached the conclusion that there will be no published judgment on the substantive application (in accordance with the Practice Guidance of 16 January 2014: Transparency in the Court of Protection - Publication of Judgments). Any judgment would have to be so heavily redacted that it would make little sense. I will authorise only the publication pursuant to COPR 4.2(2)(b) of this summary of the judgment relating to privacy, delivered ex tempore in private, and shorn of the details which are relevant to why jigsaw identification is such a risk, why public curiosity is inevitable and as to the unjust impact publicity would have on this particular family.

Considering older case law which pre-dated Abbasi, Mr Justice Rajah considered why the Court of Protection may have different rules regarding privacy than other courts:

9. The reasons for the statutory regime in COPR 4.1 to 4.3 were explained in the Court of Appeal in Independent News Media v A [2010] 1 WLR 2262 in relation to their predecessor provisions. Those who have mental capacity can deal with their private affairs confidentially and in private. The general rule in COPR 4.1 recognises that a person who lacks mental capacity to deal with their private affairs should similarly be entitled to the same privacy. The Court of Protection is only involved because the person's reduced capacity requires interference in their personal autonomy. Court of Protection hearings should therefore be held in private unless there is a good reason not to. The provisions of COPR 4.1 to 4.3 encapsulate the Article 8 rights of persons who are vulnerable, and whose involvement in court proceedings arises from their vulnerability and not their choice. The provisions rearticulate a longstanding common law exception to the principle that justice should be done in open court: see for example Scott v Scott [1913] AC 417. The jurisdiction for good reason to depart from these provisions recognises that there will be cases where the public interest in an individual case outweighs the privacy considerations…

The press was not informed of the hearing, nor given an opportunity to make submissions on W’s application that it be heard in private:

15. No notice was given to the press of this hearing. Section 12 Human Rights Act 1998 provides:

"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied:

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified."

16. In Re EM, Mostyn J expressed the view that s. 12 was not engaged if the proceedings remained in private but the Court was asked to consider making a permissive order under COPR 4.1(3) permitting the press to attend. The press would not need to be notified of an intention to seek such an order. Practice Direction 4A takes the same approach- see paragraph 8. Such a permissive order does not restrict the right to freedom of expression, it enables it, and thus s. 12 is not engaged.

17. In this case, there is not an application for such a permissive order. I am not considering granting any relief at all. I am being asked not to make an order of my own motion under PD 4C. I am asked not to interfere with the general rule under COPR 4.1. In such circumstances, s. 12 HRA 1988 is not engaged. This may seem a fine distinction, and in another case a judge may baulk at such niceties bearing in mind the important principles involved. But I am satisfied that this is a case in which notice to the press would itself undermine the purpose of the proceedings being in private.

Comment

We would note that in many ways privacy is very much the norm of property and affairs applications. The great majority of the work of the Court of Protection is in property and affairs, with most of these applications being considered on the papers without an attended hearing (the trigger under Practice Direction 4C for making a hearing public). Dispute Resolution Hearings (where many property and affairs applications are resolved) are also not in public, being expressly excluded from the Transparency Practice Direction.

Only the small number of property and affairs applications which are heard at attended hearings and are not Dispute Resolution Hearings fall under the PD4C definition of an ’attended hearing’ at all.  The case before Rajah J did not (on the face of the judgment) appear to be a disputed application; the far more ’normal’ course for it would have been to be considered by the court entirely outside of the public eye, without any issues of private or public hearings emerging.

Whether this is ‘right’ or ‘wrong’ is a matter we suggest could usefully be addressed in the context of amendments badly needed to the MCA 2005 to put in place a framework for transparency which would enable much less ‘clunky’ orders to be made, with all the attendant potential for errors to creep in.

For the perspective of the media, Joshua Rozenberg has written a blog post on this case, questioning why the media could not have been given notice and an opportunity to make submissions on the decision to hold the matter in private. Joshua also discussed this case at a webinar on 27 March, along with Katherine Scott, Arianna Kelly and Vikram Sachdeva KC.