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The quarterly online update to the Court of Protection Handbook is now available, covering key practice and procedure updates to the text of the main volume. It includes coverage of the decision in JB – the Supreme Court takes on capacity – and of AH – judicial visits, as well as other significant developments since November 2021. We have also updated our precedent letter of instruction to an expert to report upon capacity in light of the Supreme Court’s decision in JB.

The MoJ is consulting upon increasing court fees, including those relating to the Court of Protection, as follows:

The proposal, if implemented, would backdate increases to fees by inflation
to 2016 or (if later than 2016) the year the fee was last increased. The consultation runs until 17 May 2021, and can be found here.

The quarterly online update to the Court of Protection Handbook is now available, covering such cases as TA on recording remote hearings, AMDC v AG & Anor on expert reports on capacity and KK on non-disclosure of material on the basis of harm to P.

 

In TA, Re (Recording of hearings; Communication with Court office) [2021] EWCOP 3 (22 January 2021) Cobb J was faced with a ‘troubling case” concerning GA, a woman with Alzheimer’s dementia currently being cared for at home by her son TA.   “Poor progress” had been made largely because of challenges to the local authority.  The judge made directions on the substantive application.  These do not appear in his judgment which deals instead with two applications:

i) An application dated 17 November 2020, buttressed by a separate but similar application dated 15 January 2021, issued by TA for permission to make his own recording of this hearing and indeed all hearings in this case in the Court of Protection;

ii) An application, issued of the Court’s own motion by HHJ Anderson on 10 December 2020, for an order restricting TA’s contact with the Court of Protection Court office, given his history of communications with the court over a period of time.

Cobb J noted that the Court of Protection was not included in the list of courts in which the Coronavirus Act 2020 created an offence of making an unauthorised recording; but that the terms of the criminal prohibition are included in standard orders made since the guidance of Hayden J on remote access to the Court of Protection, so that unauthorised recordings become civil contempt of court.  On the facts of this case Cobb J was far from persuaded that there was any need for TA to record hearings; moreover he considered TA was likely to publish material which would identify or run the risk of identifying GA.

The background to the second application speaks for itself:

“The Operations Manager has filed a statement (17.12.20); she records that the court received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month). Her statement goes on to reveal that the e-mail/correspondence traffic generated between TA, the judiciary, and the other parties, in a recent ‘snapshot’ of 3 months (September, October, November 2020) amounted to 392 separate pieces of mail/correspondence sent/received. This amounts to approx. 130 pieces of correspondence per month, or 4.5 per day.

The Operations Manager has further advised that TA has made 39 COP9 applications in the case over the 24-month period, 35 of these have been made in 2020 (i.e. approximately 3 per month in 2020). Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C. The Operations Manager goes on to report that TA telephones the court office regularly, usually when he issues an application (which he does regularly – see above), receives orders/replies from the court office or after a hearing; she estimates that the calls are made approximately twice per week and the staff report that the telephone calls average between 30 to 40 minutes in duration. The Operations Manager observes that TA routinely challenges the competence of HMCTS staff, and he is known often to accuse the staff of colluding with the Local Authority against him. She further observes, and from my reading of the material I agree, that his more abusive comments are primarily directed at the judiciary and the lawyers for the other parties to the litigation. 

I have seen some of the e-mails which TA has sent to the court and the parties; his practice is to copy in many recipients of his e-mail (I counted well over 100 recipients to some of the recent e-mails sent to the Local Authority including his Member of Parliament). He signs himself off by his name, sometimes followed by an epithet including (from recent e-mails filed): “Diligent and persistent as ever”, “Not a Gentle Knight”, “WikiLeaks Wannabe”, “DPA [Data Protection Act] Pioneer”, or (in the case of his position statement – by e-mail – for the hearing before me) “Leviathan Terminator”. In e-mails sent following the 15 January 2021 hearing, “(a humble, disprivileged (sic.) persecuted informal carer. Mr Nobody)”, and in another “(UNBREAKABLE!)” (capitals in the original).“

 Cobb J found that there was no justification for the tone or volume of the correspondence and quoted the judgment of King LJ in Agarwala v Agarwala

“Whilst every judge is sympathetic to the challenges faced by litigants in person, justice simply cannot be done through a torrent of informal, unfocussed emails, often sent directly to the judge and not to the other parties. Neither the judge nor the court staff can, or should, be expected to field communications of this type. In my view judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court and litigants should understand that failure to comply with such directions will mean that communications that they choose to send, notwithstanding those directions, will be neither responded to nor acted upon.”

Cobb J made use of his powers under s47 Mental Capacity Act to injunct TA from communicating with the court by email and telephone, stating that although exceptional it was proportionate to the facts of the case, and added a penal notice.    The judgment concludes with the text of the order itself.    Cobb did not make use of the Part 22 of the Court of Protection Rules 2017 to make a civil restraint order.