Guidance from the Court of Appeal on procedural fairness in the Court of Protection

The Court of Appeal (Peter Jackson, Baker and Warby LLJ) has recently given judgment in The Matter of P (Discharge of Party) [2021] EWCA Civ 512, an appeal from the Court of Protection.

At first instance, Hayden J discharged the mother of P, a 19 year old woman, as a party to Court of Protection proceedings on the basis that it was no longer in P's best interests to have contact with her. The Court of Appeal held that this was procedurally unfair in circumstances where the mother was discharged without notice, without disclosure of the evidence relied on, without giving reasons for the decisions and without allowing her to make representations.

The decision is of particular interest because:

  • The Court of Appeal clarified that the same principles of procedural fairness apply to proceedings in the Court of Protection as apply to proceedings in other jurisdictions:
"The wide powers entrusted to a judge sitting in the Court of Protection do not entitle him or her to act without regard to "the ordinary principles of a judicial inquiry". As Lord Devlin observed in Official Solicitor v K, these principles "are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded." Of course, where the paramount purpose is the welfare of a child, or the best interests of an incapacitated adult, the procedure and rules of evidence should, in Lord Devlin's words, "serve and certainly not thwart that purpose". But I do not accept Ms Paterson's submission that in the Court of Protection the parties other than P do not enjoy the same degree of procedural safeguards as in adversarial litigation. The correct approach in my view is that the same legal principles of fairness and natural justice apply across all jurisdictions, but the way in which they are applied varies depending on the nature of the proceedings and the circumstances of the individual case." (At [55]).
  • The Court Appeal gave a reminder of the need for the parties to appellate litigation to comply with paragraph 33 of PD52C (which applies equally to remote hearings). This requires each party's legal representative to make available to accredited law reporters and media reporters a copy of their skeleton argument before the start of the hearing.
  • It is an unusual example of the Special Advocate procedure, usually reserved for cases involving national security, being employed in the mental capacity context. It was considered necessary because there was evidence relied on by the Respondents which risked harming P if it were disclosed to her mother.
The judgment can be accessed for free here.

The case involved the following members of 39 Essex Chambers: Jack Anderson (at first instance) and Katherine Barnes (on appeal) for the First Respondent (London Borough of Southwark); Fiona Paterson for the Second Respondent (P, represented by the OS as her litigation friend); and, Nicola Greaney for the Third Respondent (South London and Maudsley NHS Foundation Trust).