The Court of Appeal has allowed the appeal against the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) and made clear that the guidance given in that judgment about providing position statements to observers should not be followed. In Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2025] EWCA Civ 640, Sir Stephen Cobb, the new President of the Court of Protection, giving the lead judgment provided a summary of his conclusions as follows at paragraph 12.
i. Court of Protection proceedings are private by default (rule 4.1 of the Court of Protection Rules 2017) (‘COPR 2017’), even where the court directs that hearings are to be held in public under rule 4.3 of the COPR 2017. Many hearings in the Court of Protection are of course in public, but a direction for a public hearing does not convert the proceedings into “public proceedings” equivalent to litigation in the civil courts or tribunals. The judge below erred in treating the proceedings as public simpliciter and in importing openness principles from jurisdictions which are public by default;
ii. Once lodged, position statements are “court records” within the meaning of rule 5.9(2) of the COPR 2017 (following Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629) (‘Dring’). However, they are not automatically disclosable to observers or non‑parties, and court authorisation is required for disclosure of them to non‑parties under rule 5.9(2) COPR 2017;
iii. Open justice does not entitle observers to access all material informing judicial decision-making. Access to documents must be justified by a demonstrable application of the open justice principle, not by curiosity, research, education, or personal interest;
iv. Disclosure of position statements which cite highly personal source material from the written evidence is a serious interference with Article 8 ECHR rights; in this case, the court failed to engage with rule 5.9(4) COPR 2017 and specifically consider whether disclosure should be: refused, redacted, or subject to use restrictions (e.g., in relation to source evidence);
v. The procedure for disclosing position statements to members of the public should be considered as a matter of priority by the ad hoc Court of Protection Rule Committee (‘COPRC’); in the meantime, the guidance offered by the Judge at [J2/36] should not be followed; the court should in the meantime consider disclosing case summaries, chronologies and lists of issues to observers who request information;
vi. The Court of Protection exists for P’s benefit. Transparency must support justice, not overwhelm it.
More commentary on the case will follow in the next 39 Essex Chambers Mental Capacity Report.
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