Author: aruckkeene

Legal aid for historic human rights breaches in the CoP

Thank you to Charlotte Haworth-Hird of Bindmans for the following report and attached order which clears up an important point about funding in the CoP.

We have recently acted in a judicial review regarding the availability of funding to bring Human Rights Act claims within the Court of Protection. The claim has now successfully settled but unfortunately, the Legal Aid Agency refused to publicise its concession so the Official Solicitor considered it would be helpful to do so for other practitioners.

The LAA has conceded that legal aid funding is available to P to bring a claim for damages under the Human Rights Act, within the Court of Protection, for both ongoing and historic breaches. As with funding for other HRA claims, the grant of funding would be subject to application of paragraph 22 of Part 1 of Schedule 1 of LASPO.

The background to the claim is that an application for funding was made to enable P to bring an HRA claim within existing Court of Protection proceedings in respect of breaches of her Article 5 and 8 rights. Those breaches were historic. The LAA argued that funding for such claims within the Court of Protection was outside the scope of LASPO as the wording of LASPO meant that funding was only available to bring an HRA claim within the Court of Protection for an ongoing breach. The LAA argued that P could apply for funding to bring the claim in the High Court (or County Court) but that funding would not be available to pursue the claim in the Court of Protection. This decision was upheld by the LAA on review and following the issue of proceedings, the LAA served a defence maintaining the same. However, after permission was granted by the Administrative Court , the LAA conceded that its statutory interpretation was incorrect and funding is in fact available to bring historic HRA claims in the Court of Protection.

This is a very helpful clarification given the increased costs that would be incurred if P were required in every case to issue a claim in the High Court or County Court. There will, of course, still be cases in which it would be appropriate to issue a separate claim in the County Court or High Court and funding is also available for that, subject to the appropriate means and merits tests being satisfied.

Transparently pulling in different directions

In the sequel to the decision in C’s case, V v Associated Newspapers & Ors [2016] EWCOP 20, Charles J has considered afresh the Court of Protection’s approach to reporting restrictions orders, not least in light of the transparency pilot currently underway.

For present purposes, the facts can be very shortly summarised.   C’s case came before the Court of Protection for determination as to her capacity to consent to renal dialysis.   A reporting restrictions order was made at the outset of the proceedings (in standard terms for a serious medical treatment case) restricting reporting of information leading to the identification of C and her adult daughters.  The order was expressed to have effect during C’s lifetime.   After a hearing at which it was determined that C had the capacity, such that the Court of Protection had no jurisdiction, C died.  The case was the subject of considerable media interest, and both the tactics adopted by some reporters and the style of some reporting caused considerable distress to C’s family.   The adult daughters applied for a continuation of the reporting restriction order; by the time that the matter came finally to be determined by Charles J, the relevant media organisations did not contest that the order should be continued to the 18th birthday of C’s teenage daughter, although raised an issue as to whether the order could be made by Charles J as a Court of Protection judge (as opposed to a High Court judge)    Subsequent to the hearing, a further application was made that the order be extended to cover C’s inquest, which the media organisations did not resist, and which Charles J found to be justified on the particular facts of the case, especially given the prurient nature of the reporting that had taken place.

Much of Charles J’s judgment, therefore, consisted of determination of general principles for future guidance, rather than the resolution of a contest as to how they should apply upon the facts of the instant case.   In characteristic fashion, the judgment delves into matters in considerable detail, but for practitioners, the following conclusions he reached are key.

First: the Court of Protection has jurisdiction to make a post mortem reporting restrictions order (although in the instant case, and on a “belt and braces approach,” Charles J also made the order as a High Court judge to avoid any future jurisdictional arguments).   Further, reporting restrictions orders in serious medical treatment cases can extend beyond the death of the subject of those proceedings and there is no presumption or default position that such orders should end on P’s death.

Second: the Court of Protection should generally address the following questions:

  1. Are there good reasons for the hearing to be in public?
  2. If there are, should that public hearing be ordered with or without reporting restrictions? As part of that determination, how effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?
  3. In light of the conclusions as to these questions, and applying the ultimate balancing test required by Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, should the hearing be in private or in public? If in private, what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done)?   If in public, what reporting restrictions order / anonymity order should be made?

Third, the answer to the first question is almost always going to be “yes” because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing the second and third questions.

Fourth, a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. However, Charles J emphasised that this distinction only reflects the strength of the reasoning underlying those Rules and Practice Direction that in many, perhaps most, cases the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved.   The distinction therefore provides weight to the general arguments for anonymity to promote the administration of justice by the court generally and in the given case.  The distinction therefore does not undermine the general proposition that naming people has a valuable function of rendering news stories personal and therefore effective as journalism (see In re Guardian News and Media Ltd [2010] UKSC 1).  As Charles J reminded us, the CoP needs to remember it is not an editor.

Fifth, the weight to be given to the “naming proposition” and the conclusion as to what generally best promotes the administration of justice will vary from case to case, and may require specific consideration (and reasons) in specific cases.   Charles J gave some useful examples of how these considerations might apply in different cases:

  1. If the case involves a celebrity but otherwise is not out of the ordinary, the Court will be exercising a well-known decision making process, and the difficulty or impossibility of providing effective anonymisation may found a decision not to order a public hearing. The question for the trial judge will therefore be what (if any) document or judgment should be made public;
  2. If the case involves a celebrity but raises new or unusual points and so is out of the ordinary this may found a decision for a public hearing with no (or unusual) reporting restrictions;
  3. Where findings of serious mistreatment or malpractice are sought or when a member of a family wants (or has initiated) publicity that identifies P and family members issues will arise whether: (1) there should be a public hearing with no reporting restrictions (so the rival arguments and assertions are made public and linked to identified individuals); or (2) whether there should be a private hearing (with disclosure to relevant bodies or persons).

Charles J also used the opportunity to set out in a schedule to the judgment a comparison between the Transparency Pilot and the approach to reporting restrictions orders in serious medical treatment cases.   His analysis includes a useful – technical – explanation of the reasons why the two are different, a useful discussion of the purpose of notice, and also an invitation to the media and other interested persons to provide comments and contributions as to the practice relating to and the terms of Transparency Pilot Orders and PD13 Reporting Restriction Orders, not least so as to enable the ad hoc Rules Committee he chairs to consider whether  separate practice directions and different standard orders should continue in respect of serious medical treatment cases and/or whether the existing practice/template order in such cases should be changed.

Comment

In light of the sorry picture painted of the conduct of the relevant media organisations, it is hardly surprising that Charles J took the (very unusual) step of extending the RRO to cover C’s inquest.   Of wider significance and longer-term importance, however, are Charles J’s observations as to the general approach to be taken and questions to be asked as the CoP continues to look – via the Transparency Pilot – for the best approach to enable it secure the correct balance between Articles 8 and 10 ECHR and thereby correctly promote the powerful (and often competing) public interests they engage and reflect.

[A version of this note appeared in the May 2016 39 Essex  Chambers Mental Capacity Law Newsletter]

 

Expert evidence and admissibility

In Kennedy v Cordia (Services) LLP [2016] UKSC 6, the Supreme Court had to consider a Scottish appeal arising out of a personal injury claim made by a home carer against her employer Cordia (Services) LLP following an injury to her wrist when she slipped on a snow covered footpath on the way to a home visit. An issue arose as to whether a witness who gave evidence about health and safety requirements, risk assessments and the availability of ‘add-ons’ (material that employers could provide to employees to add to their footwear to help prevent slips) was an expert witness.

The Supreme Court set out four general matters which fell to be addressed in the use of expert evidence in civil cases: (i) the admissibility of such evidence (ii) the responsibility of a party’s legal team to make sure the expert keeps to his or her role of giving the court useful information (iii) the court’s policing of the performance of the expert’s duties and (iv) economy in litigation.

The question of admissibility was held to turn on four considerations: (i) whether the proposed expert evidence would assist the court in its task; (ii) whether the witness has the necessary knowledge and experience; (iii) whether the witness is impartial in his or her presentation and assessment of the evidence; and (iv) whether there is a reliable body of knowledge or experience to underpin the expert’s evidence.

Despite being a Scottish case about employers’ liability, this appeal is of use more generally across the UK as a guide to expert witness evidence in civil proceedings (including, of course, COP cases and adult incapacity cases) and contains a helpful review of case law relevant to the four considerations on admissibility. One quote stands out as particularly apt when considering expert reports on capacity: “As with judicial or other opinions, what carries weight is the reasoning, not the conclusion” (Lord Prosser in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604).

[A version of this note appeared in the April 2016 39 Essex  Chambers Mental Capacity Law Newsletter]

 

Statutory charging and discretion

In R (Faulkner) v Director of Legal Aid Casework [2016] EWHC 717 (Admin), Mostyn J determined an issue which has application, by analogy, to a growing concern in the Court of Protection about the difficulties in securing damages for breaches of P’s human rights.

The Supreme Court had previously held ([2013] UKSC 23) that where a prisoner cannot prove that, but for the delay in holding a Parole Board hearing, s/he would have been released, s/he will nevertheless generally receive a modest award of damages for feelings of frustration and anxiety where the period of delay has been for three months or more. Prisoner Sturnham was accordingly awarded £300. However, higher awards would be made where, but for the breach, the prisoner would have been released earlier. Prisoner Faulkner had shown on the balance of probabilities that he would have been released if his review had taken place 10 months earlier and was award £6,500 for breach of Article 5(4).

The issue in the present case was whether that sum of £6,500 should be subjected to the Legal Aid Statutory Charge, following the costs arising from Supreme Court’s decision. If it was, he would recover nothing. For those unfamiliar, the reasons for the statutory charge are explained in its accompanying Manual:

1.The statutory charge is designed to:

  • put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v Eli Lilly & Co [1987] 3 All ER 94 at 97 to 98)
  • ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and 
  • deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.…

3. The law that creates the statutory charge is based on the solicitor’s charge. The principle behind the solicitor’s charge is that it is fair for solicitors to be able to take their costs out of any property their clients recover or preserve because of the services provided.

 

The statutory charge can be waived where it is equitable to do so if (a) the proceedings have a significant wider public interest and (b) it is cost-effective to fund particular claimants. Mostyn J held that these two issues leading to the waiver decision must be determined either at the beginning or during the case. Moreover, it was not a violation of Faulkner’s human rights to have his damages subject to the statutory charge:

 

  1. I accept that an award of damages made under Article 5 (5) of the European Convention on Human Rights is a serious matter. Detention by the State is, on any view, a very bad business. The award of damages – although they are customarily modest – should reflect the fact that it is only in Article 5 (5) of the Convention that compensation is mentioned. However I do not accept that awards of damages for State detention pursuant to the Convention are a class apart from all other types of damages. I do not accept that because they are awarded to Mr Faulkner as a victim of human rights violation that they should be subjected to a process of immunisation in the way that perhaps damages for personal injury or an award of damages for, say, the loss of an eye or a leg would not. Naturally, State detention is a bad business but the consequences of many personal injuries are far more long-enduring than temporary State detention as happened in this case by virtue of delay in convening a Parole Board hearing.
  2. It is for these reasons that I reject the argument that there is some kind of special status or numinous quality to be attached to these damages. These damages are to be treated under the costs regime, in my judgment, in exactly the same way as any other damages. It is therefore for these reasons that the claim for judicial review is dismissed.

Comment

 What often matters most in human rights cases is a judicial declaration of a violation.  However, there will be cases in the court has decided that monetary compensation is required in order to give the victim just satisfaction.

Unless there is full cost recovery, what the State awards with one hand (damages), it takes away with the other (the statutory charge). The waiver is now governed by the Civil Legal Aid (Statutory Charge) Regulations 2013 (SI 2013/503).  Requiring clarity from the Legal Aid Agency as to whether the condition precedents to a waiver decision (significant wider public interest and cost-effectiveness) have been satisfied before the case is over ensures that those benefitting from legal aid know whether a waiver of ‘is in the offing’.

An allied problem which is of particular difficulty for Court of Protection practitioners is what is to happen where a claim under the HRA is brought at the conclusion of proceedings in the COP.   In the editors’ experience, the Legal Aid Agency adopts an inconsistent approach as to whether (1) such a claim should be brought within the COP, or in the County or High Court upon the basis of declarations made in the COP; and (2) in either case, whether in the event of damages being awarded, the LAA will seek to recoup only the costs of the claim under the HRA or the entire costs on the legal aid certificate, including the costs of the underlying “substantive” COP proceedings.    We are aware that there may be a judicial review in the offing in relation to a similar issue that has arisen in the context of claims being brought on behalf of children arising out of care proceedings.[1] We will bring you news of developments in this area as soon as we have it, but in the interim our strong advice (not, of course, legal advice on the facts of any individual case) is to extract from the LAA as early as possible a statement in writing as to what they will do on the facts of the particular case: experience has taught that setting out a clear proposal for how to proceed with an explanation of why such is likely to result in a speedy and proportionate of the HRA aspects of the claim together with a request for confirmation that this is agreed is likely to achieve better results than asking an open-ended question as to what the LAA would like.

[1] Local guidance in Staffordshire, brought to our attention by Andrew Bagchi QC, has provided for a 3 month stay (from 23 February 2016) on all “free-standing” actions in such claims in that area pending clarification of the position.

[A version of this note appeared in the April 2016 39 Essex  Chambers Mental Capacity Law Newsletter]

[Update October 2016: We understand that the Staffordshire guidance (the current status of which we do not know) was not issued with the approval or indeed knowledge of the Official Solicitor and there has been no such judicial review brought].

Case Management Pilot explained

The Case Management Pilot has now been published.  It is in draft form at present, and the intention is that it will come into effect in June.  Although it has not formally been published for consultation,   practitioners are strongly urged to read and review it carefully, and to send any comments upon it to Joanna Furlong at the Ministry of Justice so any glitches can be ironed out so far as possible before it goes live.

The Case Management Pilot will introduce 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.   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.

Before highlighting the key points of each, 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).

It should also be noted that the intention is that the Case Management Pilot sits alongside and does not displace the Transparency Pilot for so long as they are both in operation (which will include at least part of June and all of July 2016), 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 here, 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 follow.

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.

[Note: a version of this originally appeared in the March 2016 39 Essex Chambers Mental Capacity Law Newsletter. Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot. This note does not, however, represent an official comment on behalf of the Rules Committee.]

 

 

Section 49 Pilot explained

The section 49 Pilot Practice Direction has been published to come into effect in June 2016 (but unlike the Case Management Pilot Practice Direction, published for information only).  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 draft version of the template s.49 order in Word form is to be found here.

[Note: a version of this originally appeared in the March 2016 39 Essex Chambers Mental Capacity Law Newsletter.  Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot. This note does not, however, represent an official comment on behalf of the Rules Committee.]

 

Court of Protection Handbook Second Edition – your chance to make a difference

We are setting the wheels in motion to produce a second edition of the Court of Protection Handbook by the end of the year.   We think we know what we need to cover – not least all the exciting developments such as the Case Management Pilot – but we would very much like to hear from you with suggestions of what we need to make sure we add (or conversely, what we can lose).   All answers on an electronic postcard please to courtofprotectionhandbook@gmail.com.

Case Management Pilot Draft published

The long-awaited case management pilot has now been published in draft form for comment and consideration before it goes live in June of this year. There will be more analysis of it and of its implications in next month’s Mental Capacity Law Newsletter, but and very brief terms of pilot envisages very clear pathways for health and welfare cases, property and affairs cases, and mixed cases.

In all cases, the pilot Case Management Direction will place an obligation on applicants to provide improved analysis of the issues at the start of a case, allowing for more robust case management decisions to be taken at the outset and all issues to be identified at the earliest opportunity in proceedings. It will also seek to encourage early resolution of cases, to reduce the number and length of hearings required in contested cases and to promote judicial continuity. The pilot is expected to run for up to 12 months.

Separately, and also to start in June, a pilot has been published to tighten up the  relating to s.49 reports. The pilot aims to ensure that such reports from public bodies are attained in a proportionate, targeted and, above all, useful fashion.  

Transparency guidance on anonymisation updated

Following feedback that the procedure being adopted to ensure that parties were anonymised was perhaps a little too over-zealous, new guidance has been issued.   If further issues such as these are identified, the guidance accompanying the pilot will no doubt be subject to further amendment in due course as all those involved continue to find their feet.

[Update 25 February, this guidance is going to be further updated in light of an ambiguity brought to the attention of the relevant authorities so we have removed the link for the time being]