Case Management, s.49 and Transparency Pilot updates

Case Management Pilot

The Case Management Pilot will start on 1 September, to run until 31 August 2017 (alongside the s.49 Pilot and the extended Transparency Pilot, both discussed further below).[1]

The Case Management Pilot can be found here. It introduces three distinct pathways for COP proceedings: 1) a Property and Affairs pathway, 2) a Health and Welfare pathway, and 3) a hybrid pathway for cases that have elements of both. The expectations of practitioners will be different depending upon which pathway is engaged.     Common to each, though, is an expectation of much greater ‘front-loading’ and cooperation to narrow the issues.

The Case Management Pilot is accompanied by a revised set of Rules which foreshadow a re-numbering of the Rules that is anticipated as part of the second tranche of rules changes (moving to the same model as in the CPR and FPR).   For ease of reference, all the Rules that will apply for purposes of the Pilot are set out in an annex – with suitably highlighted amendments – to the Pilot practice direction.   They are also found collected together on the Court of Protection Handbook website here.   There are six Pilot Parts:

  • Pilot Part 1: the overriding objective, including the participation of P, heightened duties upon the court and upon parties, and new duties upon both legal representatives and litigants in person;
  • Pilot Part 2: interpretation and general provisions;
  • Pilot Part 3: managing the case;
  • Pilot Part 4: hearings;
  • Pilot Part 5: court documents;
  • Pilot Part 15: experts.

As these parts cover the majority of relevant matters that arise during the life of an application, the intention is that practitioners (and the judiciary) will have to do the minimum of cross-referencing to the current iteration of the Rules during the life of the Pilot.    However, an unfortunate consequence of the fact that for reasons beyond the control of the ad hoc Rules Committee the renumbering of the Rules cannot take place at present is that there will be parallel Rules for the life of the Pilot depending on whether cases are within or outside the Pilot.   This means, for instance, that Rule 3A representatives are actually Pilot Rule 1.2A representatives in cases on the Case Management Pilot.

Before highlighting the key points of the three pathways, it is important to note the types of applications which the Pilot will not affect, which include: uncontested applications, applications for statutory wills and gifts, applications relating to serious medical treatment and deprivation of liberty applications (both Re X applications and s.21A applications).   However, even for such cases, we strongly suggest that it is prudent to proceed in any case on the basis of any stricter obligation/test that would apply if the case were on the Pilot.   If the Case Management Pilot achieves its aim of changing the culture of the Court of Protection, then it is likely that the judiciary will seek to follow its spirit even where its letter does not apply.

It should also be noted that the intention is that the Case Management Pilot sits alongside and does not displace the Transparency Pilot, so the expectation will be that all of the hearings noted below, with the express exception of the Dispute Resolution Hearing provided for in the property and affairs pathway, will be listed according to the Transparency Pilot rules as regards public/media attendance.

Personal welfare pathway

The personal welfare pathway starts pre-issue, with a set of requirements designed to ensure that only those applications which actually require resolution by court proceedings come to court, and those which do, do so in circumstances where the issues are clearly delineated from the outset.   The Pilot Practice Direction then specifies in some detail what must be included with or accompany the application upon issue including – importantly – a statement as to how it is proposed P will be involved in the case.

The next stage is for matters to be considered by a judge on the papers both for gatekeeping purposes (i.e. allocating to the correct level of judiciary) and the making of initial directions including, importantly, listing a Case Management Conference within 28 days (unless the matter is urgent).      The judge can also direct that there be an advocates’ meeting before the CMC.

The CMC will be the first attended hearing and a vital step in the proceedings because of the obligations placed upon the court (not just the parties) to ensure that the issues are narrowed and directions set for the proportionate resolution of those that are in dispute. Importantly, one of the matters that the court will do is to allocate a judge to the matter – judicial continuity being recognised as crucial to the success of the pilot.    It is also important to note that this Pilot is running alongside the s.49 pilot discussed further below, and also includes a tightening of the rules in relation to experts (where the Pilot applies) so as to limit permission to circumstances where their evidence (1) is necessary to assist the court to resolve the issues in the proceedings; and (2) cannot otherwise be provided.

The intention is that in the ordinary run of the events there would then only be (at most) two more hearings, a Final Management Hearing and the Final Hearing. Ahead of the Final Management Hearing, whose purpose is to determine whether the case can be resolved by consent and, if not to ensure proper preparation for trial, an advocates’ meeting is to be listed at least 5 days in advance for purposes of – inter alia – preparing a draft order for the court to consider at the FMH.    Matters that are likely to be covered at the FMH will include such things as the trial timetable and a witness template, as well as the contents of the trial bundle: in line with the injunction given by the Court of Appeal in Re MN, the expectation is that the trial bundle for the Final Hearing will not generally exceed 350 pages, and must not include more than one copy of the same document.

It is important to note that, unlike the Public Law Outline, there is no fixed timeframe within which proceedings must be concluded, the only fixed date being the listing of the Case Management Conference.   The intention, however, is that the process set down in the Pilot is will mean dramatically shorter resolution of welfare applications.

Property and Affairs pathway

The property and affairs pathway does not start pre-issue because it is recognised that it is often only upon issue that it becomes clear that a property and affairs application is contentious.   It therefore comprises four stages.

The first stage is when the application becomes contested, i.e. when the court is notified in the COP5 that the application is contested or a respondent wishes to seek a different order.

The case management stage takes place on the papers, and includes either: (1) listing for a Dispute Resolution Hearing; or (2) transfer to a suitable regional court for listing of the DRH and future case management.   If the respondent has not given sufficiently clear reasons for opposing/seeking a different order, the judge will also at that stage require such reasons to be given.

The Dispute Resolution Hearing is a major innovation, and represents – in essence – judicial mediation in a form familiar to family practitioners.   A DRH, which will normally take place before a District Judge, is to enable the court to determine whether the case can be resolved and avoid unnecessary litigation, and to that end the content of the hearing is not to be disclosed and everything said therein is not admissible (save in relation to a trial for contempt).    The court is expressly required to give its view as to the likely outcome of the proceedings as part of the DRH.   The aim is for the court to be able to endorse a consent order at the end of the DRH; if not, the court will list for directions of the management of the hearing and a Final Hearing.

The last stage – the Final Hearing – will take place in accordance with directions made at the DRH (there being no Final Management Hearing as with the welfare pathway).

As with the welfare pathway, there is no fixed timeframe for the determination of the application.   Nor, in this instance, is there a specific timeframe for listing of the first attended hearing – the DRH.   This recognises that there is merit to flexibility because there will be some cases in which allowing longer for a DRH is more likely to bring about a quicker resolution overall; conversely, in some cases, the sooner that judicial banging of heads takes place the better.

Mixed pathway

If an application comprises elements of both welfare and property and affairs, prospective parties are directed at the pre-issue stage to identify which pathway is most effective and to comply with the requirements of that pathway so far as possible.   At point of issue, they must file a list of issues to allow the court to identify which pathway or mixture of elements is most appropriate.

The court will then, on the papers, either allocate the case to one of the two pathways set out above, or give directions as to the elements of each pathway are to apply and the particular procedure the case will follows.

Urgent applications

In all cases there is express provision for urgent applications, requiring the parties in particular to specify why the matter is urgent and any particular deadline by which the issue(s) need to be resolved as well, as well as directing compliance (insofar as possible) with any necessary pre-issue steps.

Expert evidence

An important change that is introduced by the Case Management Pilot is a revised Part 15 on expert evidence.   Crucially, the test for permission has been revised in COPR Pr121 to make it more stringent.   The court’s duty is now to restrict expert evidence to that which is necessary to assist the court to resolve the issues in the proceedings, and by COPR Pr 121(2) the court may only give permission to file or adduce expert evidence if it is satisfied that it is both necessary and cannot otherwise be provided.   Further, the court must now in deciding whether to give permission to file or adduce expert evidence have specific regard by COPR Pr123(2A) to (a) the issues to which the expert evidence would relate; (b) the questions which the expert would answer; (c) the impact which giving permission would be likely to have on the timetable, duration and conduct of the proceedings; (d) any failure to comply with any direction of the court about expert evidence; and (e) the cost of the expert evidence. Additionally, by para 4.5(m), the Case Management Pilot Practice Direction provides that for cases on the welfare pathway, the court must at the case management hearing actively consider whether a section 49 report (or a report from a Rule 3A/PR r1.2 representative) could achieve a better result than the use of an expert.

Section 49 Pilot

The s.49 Pilot also starts on 1 September, to run until 31 August 2017.   The Practice Direction applies both to orders made under s.49 MCA by the COP of its own motion and – more importantly – to orders sought by parties. The Practice Direction is accompanied by a draft order.   It recognises, in essence, that s.49 reports are an extremely important part of the COP’s armoury when it comes to information gathering, but that they must be deployed:

  1. Carefully, so as to ensure that they are targeted to public bodies actually able to provide useful information;
  2. With suitable thought and preparation on the basis that, to be effective, they are best approached as if they were expert reports.

An important innovation is the requirement, where possible, for a party seeking a s.49 report from a NHS body or local authority to have made contact prior to the application being heard by the court to identify an appropriate person (“a senior officer”) able to receive the order, and to have discussed with the body the reasonableness and time scales for providing the report.   Although it does not prescribe when a court will and will not order one, the Practice Direction set out (at paragraph 3) common factors that the court may consider when deciding whether to order a s.49 report, including:

  • where P objects to the substantive application or wishes to be heard by the court and does not qualify for legal aid;
  • where it has not been possible to appoint a litigation friend or [under the new numbering] rule 1.2 representative, including where the court has made a direction under rule 1.2(5);
  • where a party is a litigant in person and does not qualify for legal aid;
  • where the public body has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation;
  • the role of the public body is likely to be relevant to the decisions which the court will be asked to make;
  • the application relates to an attorney or deputy and involves the exercise of the functions of the Public Guardian; and
  • evidence before the court does not adequately confirm the position regarding P’s capacity or where it is borderline; or if information is required to inform any best interests decision to be made in relation to P by the court.

An unofficial version of the template s.49 order in Word form is to be found here.

Transparency Pilot

The Transparency Pilot has been extended to run until 31 August 2017. We hope in due course that a formal report as to the reasoning will be published, but for present purposes practitioners – and indeed the judiciary – should note the following changes to the Pilot Order (which is available here, including in unofficial Word form):

  • An addition to paragraph 5A (i.e. those bound by the order) to make express that it binds “all persons who are provided with or by any means obtain documents and information arising from this application;”
  •  An addition to paragraph 6 (concerning anonymisation of the transcript of hearings/judgments/orders), making clear that a confidential schedule should be provided with the necessary identification (and a copy of the order) to any person who needs to know the identity of P and/or others anonymised, for instance for purposes of complying with an order for disclosure of documents/information relating to P;
  • A considerable simplification of the requirements relating to anonymisation of documents.  Because – so far – very few hearings have been attended by anyone other than the parties, the initially cautious approach, which required all core documents to be anonymised, has been relaxed.   There is now no requirement that this is to be done; rather the court, by new paragraph 7, may at any time give such directions as it thinks fit (including directions relating to anonymisation, payment, use, copying, return and the means by which a copy of a document or information may be provided) concerning the provision of information or copies of documents put before the court and the terms on which they are to be provided to any person who attends an attended hearing (and who is not already allowed to be given a copy of a document under PD13A – i.e. for such purposes as receiving advice or making complaints to relevant bodies).

Tor Butler-Cole of 39 Essex Chambers had previously prepared an unofficial easy read version of the Pilot Order, and we understand that an updated version to reflect the provisions of the amended Order will be forthcoming.

It should be noted, finally, that the PD extending the Transparency Pilot did so in such a fashion that it is now easier to update the Pilot Order, and practitioners should therefore make sure to ensure that they are using the current version, which will always be found here.

[1] What follows is an updated version of the note that appeared in the March 2016 39 Essex Chambers newsletter, and originally appeared in the August 2016 Newsletter. Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot.  As before, this note does not represent an official comment upon behalf of the Rules Committee.

 

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