The case of Stockport MBC v NN & Anor [2024] EWCOP 51 concerned a directions hearing which was due to be held remotely in order to facilitate the attendance of the protected party, “NN”, who was not in the locality.
The hearing was listed as being in public but with reporting restrictions.
The evening prior to the hearing, an observer submitted a request to the court, seeking to be allowed to join the remote hearing.
NN was noted to be actively involved in her case and frequently participated in the hearings. She would speak to the judge in order to make her views clear. The judge highlighted that NN was a private lady who attached a great deal of importance to being treated with dignity.
NN’s lawyers told the judge that when informed of the observer’s request, NN became ‘heightened’ and expressed she did not want the observer to attend.
Counsel for the applicant local authority and care body took a neutral stance but indicated they did not wish for NN’s engagement to be affected in any way.
The observer, having heard NN’s wishes, offered to leave the hearing as she did not wish to cause any distress.
Hearings are generally to be in public unless any of the matters under CPR r.39.2(3)(a)–(g) apply and that it is necessary to sit in private to secure the proper administration of justice. Rule 39.2(3)(c) is one of the exceptions if the hearing will involve confidential, personal, financial matters and this hearing was intended to involve discussions around NN’s financial position.
The judge also applied the exception under Rule 39.2(3)(d) which states a private hearing can be necessary to protect the interests of a protected party, going on to say NN was at risk of not being able to participate fully as she had in previous hearings. The hearing went on proceed on a private basis.
This judgment has demonstrated once again the challenges faced by the Court of Protection in balancing the principles of open justice & transparency against any adverse impact on the interests of a protected party.
It raises the question of whether the exceptions applied above will continue to be raised in a circumstance where perhaps an insurer involved in a protected party’s injury claim seeks to attend a hearing. It does not take a stretch of the imagination to see how this could cause a protected party to feel discomfort and therefore invite these same submissions that they are not able to participate fully in proceedings as a result of the observer’s attendance.
The Court of Protection continues to wrestle with these competing principles and we ought to be cautious this type of decision does not go on to amount to a veto against public hearings given to protected parties.
A copy of the judgment can be accessed here: Stockport MBC v NN & Anor [2024] EWCOP 51 (T1) (22 August 2024) (bailii.org)
Joanna Lamb is an Associate in the catastrophic and large loss injury team based in Manchester and a member of the Capacity & Court of Protection subject matter group.
The mere fact of being a protected party does not automatically mean that the hearing is to be private; however, this protected party is at risk of not being able to participate fully in a "private" environment where she has fully participated in earlier remote hearings where there was no observer. Her voice should be heard when she has made it clear she does not want an observer to be involved in her hearing.
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