Hayden J has published a letter (4 May) providing an update upon the steps taken by the Court of Protection to respond to the pandemic, and, in particular, the work of the Hive group since its establishment in late March 2020 across the full spectrum of the Court’s work.
The Vice-President, Hayden J, has issued on 31 March detailed guidance about remote access to the Court of Protection, including a detailed protocol for remote hearings, consideration of how to secure the principles of transparency before the Court of Protection, and a draft order.
The second quarterly update to the Court of Protection Handbook can now be found here. Although it is primarily of use for those in possession of the Third Edition (and if you are not, you should be!) it is also of use as a summary of case-law relating to practice and procedure since the book was published in July 2019.
In Re D (A young man)  EWCOP 1, Mostyn J had to consider a question that had previously been the subject of only very limited judicial consideration, namely the test for permission under s.50 MCA 2005. The case concerned a young man, D, aged 20, with autism. He had been looked after by his father and his stepmother, C, since the age of 3.
D’s mother, who was subject to a civil restraint order, applied for permission to make a substantive application concerning the nature and quantum of her contact with D. Mostyn J granted her leave under the terms of the civil restraint order to make the application for permission to make the application itself.
Under the terms of ss.50(1) and (2) MCA 2005, the mother needed permission to make a substantive application as she did not fall into one of the categories where permission is not required set out in section 50(1). Section 50(3) provides:
In deciding whether to grant permission the court must, in particular, have regard to –
(a) the applicant’s connection with the person to whom the application relates,
(b) the reasons for the application,
(c) the benefit to the person to whom the application relates of a proposed order or directions, and
(d) whether the benefit can be achieved in any other way.
Mostyn J noted that:
4. A permission requirement is a not uncommon feature of our legal procedure. For example, permission is needed to make an application for judicial review. Permission is needed to mount an appeal. Permission is needed to make a claim under Part III of the Matrimonial and Family Proceedings Act 1984. In the field of judicial review, the permission requirement is not merely there to weed out applications which are abusive or nonsensical: to gain permission the claimant has to demonstrate a good arguable case. Permission to appeal will only be granted where the court is satisfied that the appellant has shown a real prospect of success or some other good reason why an appeal should be heard. Under Part III of the 1984 Act permission will only be granted if the applicant demonstrates solid grounds for making the substantive application: see Agbaje v Akinnoye-Agbaje  UKSC 13 at  per Lord Collins. This is said to set the threshold higher than the judicial review threshold of a good arguable case.
5. There is no authority under section 50 giving guidance as to what the threshold is in proceedings under the 2005 Act. In my judgment the appropriate threshold is the same as that applicable in the field of judicial review. The applicant must demonstrate that there is a good arguable case for her to be allowed to apply for review of the present contact arrangements.
The case had had a very lengthy and unhappy history, contact arrangements between D (at that stage a child) and his mother having been fixed some seven years previously. Having rehearsed the history, the possible scope of proceedings before the Court of Protection and (in his view) the irrelevance of the fact that D had turned 18, Mostyn J held that he applied:
13. […] the same standards to this application as I would if I were hearing an oral inter partes application for permission to seek judicial review. I cannot say that I am satisfied that the mother has shown a good arguable case that a substantive application would succeed if permission were granted. Fundamentally, I am not satisfied that circumstances have changed to any material extent since the contact regime was fixed seven years ago and confirmed by me two years ago. I cannot discern any material benefit that would accrue to D if this permission application were granted. On the contrary, I can see the potential for much stress and unhappiness not only for D but also for his family members if the application were to be allowed to proceed.
Mostyn J therefore refused the mother’s application for permission.
Being pedantic, Mostyn J was not correct to say that there was no authority on s.50. In 2010, Macur J had in NK v v VW  COPLR 105 had refused permission on the basis that she considered that “section 50(3) and the associated Rules require the Court to prevent not only the frivolous and abusive applications but those which have no realistic prospect of success or bear any sense of proportional response to the problem that is envisaged by NK in this case.” Fortunately, not least for procedural enthusiasts, that approach is consistent with the more detailed analysis now given by Mostyn J.
The Vice-President of the Court of Protection, Hayden J, has published guidance on serious medical treatment applications in the Court of Protection. It covers (1) situations in which consideration must be given as to whether an application should be made and (2) the court’s expectations in relation to the making and progress of an application. It is expressly designed to operate until such time as it is superseded by the revised Code of Practice to the Mental Capacity Act.
The Ministry of Justice has introduced a refund scheme relating to court fees, including the Court of Protection. For the Court of Protection, the scheme relates to those who paid court fees between 1 April 2016 and 31 March 2018 for:
In addition, if you paid a hearing fee between 1 April 2017 and 31 March 2018, you may also be eligible for a refund.
Queries regarding the scheme should be directed to the helpdesk as follows:
Telephone: 0300 1233077
Professional Deputies are entitled to general management costs which are reasonable and proportionate to the total value of the client’s estate. The amount of work done and that any work done should be done by the appropriate fee earner. Last but not least, the professional deputy is required to demonstrate they are acting in their client’s best interests. Professional Deputies who are appointed by the Court of Protection are required to submit estimates of costs and bills for assessment at the end of a reporting period.
From Monday 20 January 2020, deputies are required to send a Bill of Costs, N258 and authority to assess (deputyship order) through the e-filing system in PDF Format.
Bills of costs submitted in paper form will be rejected by the Senior Courts Cost Office (SCCO) after this date. Any files submitted after this date in paper form will be returned.
How to E-File
To E-File, your firm should register as a user on the E-Filer system using an email address and password.
You can register by clicking here – scroll to the bottom of the page and select register as an e-filer.
Guidance on the SCCO e-filing system works is here.
Guidance from the HMCTs is also available here.
Costs that can be claimed
Practice Direction 19B sets out the fixed costs that may be claimed by solicitors and office holders in public authorities appointed to act as deputy for P.
You can find the Practice Direction here.
Payment can no longer be made to the SCCO by way of cheque. The firm must have a PBA or debit payment facility.
To find out more about applying for PBA accounts click here.
[This post was written for us by Hannah Nicholas, @thecapacitycat]
The Vice-President of the Court of Protection, Hayden J, sent a letter on 26 November 2019 to other judges of the Court of Protection, reproduced here, in which he noted that:
One of my most surprising discoveries on becoming V.P. was that the Court of Protection did not have a clearly structured system for administration of appeals. The route by which cases came to be heard on appeal was haphazard and inconsistent. Some appeals simply got lost and others took an unconscionable time to reach a hearing.
The letter sets out the internal procedure for appeals, in particular, for appeals from Tier 2 (i.e. Circuit Judges) to Tier 3 (High Court judges).
The Practice Direction governing appeals, PD20A, can be found here.
The Law Society have been in discussions with HMCTS regarding the issues related to the appointment process for ALRs, which has been far from smooth.
In a response to the concerns raised, HMCTS has agreed to run a pilot as of 1 April 2019. As of this date, where a nominated ALR is already involved within proceedings, they can seek appointment within the proceedings and be appointed by the judge. Where an ALR seeks to be nominated within application, they will need to provide reasons for their appointment to the judge.
If there is no nominated ALR within the proceedings, the judge will continue to appoint ALR’s from the ALR list.
The pilot will run for a period of 3 months, where after HMCTS will take a view as to whether allowing direct nominations has been successful. The Law Society are encouraging all ALRs to put themselves forward for direct nomination during the period of the pilot, in order to demonstrate the effectiveness of the process.
The current list of ALRs can always be found on the Law Society website here.
The snappily named Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018, coming into force on 25 July, will reduce the fees for applications from £400 to £385, and for appeals from £400 to £320.
The reduction to these fees follows, according to Parliamentary Under Secretary of State for Justice Lucy Frazer QC MP “a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. Our review has identified a number of cases where the fees charged were above full cost recovery levels.” It is not clear at this stage whether those who have been charged the higher sums in the CoP will also benefit from the refund scheme that is being applied in relation to excess fees identified in other areas.