Our recent blog considered Transparency Orders in the Court of Protection and the BBC’s attempt to lift the Transparency Orders to the extent they wished to disclose details of a particular case in a proposed documentary.
By way of reminder, the Court of Protection decided against the disclosure being allowed after balancing the interests of the Protected Party’s welfare and right to a private life against the right to freedom of expression. That case would have resulted in significant exposure, but what happens when a person seeks to merely observe proceedings?
The starting position is that all Court proceedings are heard in public, in the interests of openness. Thereafter and only if necessary for justice, CPR rule 39 sets out grounds for a hearing to be held in private. These grounds include:
- publicity would defeat the object of the hearing;
- it involves matters relating to national security;
- it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
- a private hearing is necessary to protect the interests of any child or Protected Party;
- it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
- it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
- the Court for any other reason considers this to be necessary to secure the proper administration of justice.
Given the nature of Court of Protection proceedings, most applications become subject to a Transparency Order making matters private as a result of proceedings often concerning personal financial matters or privacy being necessary to protect the interests of the Protected Party. This is not automatic, however, and the recent case of Stockport MBC v NN (by the Official Solicitor as her litigation friend) and another considered a request for a third party to observe proceedings.
Background
In this case, the third party requested to observe a directions hearing which was being heard in public. The Court notified the parties of this request and sought their position in response. The Protected Party in this case became agitated in response to the request and it was submitted that in allowing the request it would not be serving her best interests. The Court considered this may be detrimental to the Protected Party’s participation. The Court also noted that the hearing would likely involve discussing personal financial matters, a ground for a hearing to be heard in private.
On hearing the distress this may cause, the third party making the request withdrew the request as there was no intention to cause distress. The Court of Protection concluded that given the Protected Party’s concern and discussion of personal financial matters on this occasion, held it was necessary for the proper administration of justice for proceedings to be heard in private.
Comment
This case confirms that not all is lost following the decision made against the BBC. CPR 39 sets out clear guidelines as to when a hearing can be made private and will allow for others to attend in the interests of open justice. In the event members of the public are able to attend, it is very likely the case details will remain subject to reporting restrictions and therefore anyone attending will be unable to discuss matters outside of the hearing.
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Stuart Parris is an Associate in our expert Dispute Resolution team, specialising in inheritance and Court of Protection disputes.
If you require any advice on the above subjects, please contact Stuart or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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