Precedent materials
We include here in downloadable form the following precedents:
- pre-issue letter;
- position statement;
- witness statement;
- letter of instruction to independent social work expert to report upon best interests;
These precedents track through a (fictitious) case. They are taken from the Third Edition of the Court of Protection Handbook.
With huge thanks to Michelle Pratley, we also include a sample letter of instruction to a psychiatrist to report upon decision-making capacity in a number of domains, together with a letter completed upon the basis of a (fictional scenario).
Precedent orders – overview
These precedent orders (which are downloadable in Word form) cover the majority of the situations encountered before the Court of Protection. They are provided in good faith and as a service to assist those appearing before the Court, but care must be taken in every case to ensure that the order is amended as necessary to meet the specific facts of the case.
Where indicated with *** these precedent orders originated with HMCTS, and we are grateful to James Batey for permission to use them.
Where indicated with ### these precedent orders (relating to the Case Management Pilot) also originated from the judiciary and we are grateful to Charles J, former Vice-President of the Court of Protection, and District Judge Marin, for permission to use them. They come with the following health warning:
“Practitioners must note that the template orders have only been produced by the judges at the central registry of the Court of Protection to assist judges in the regional courts and practitioners. In each case, however, the court is free to make the order it wants and may choose to adapt or even disregard the template orders.”
We are very grateful to Hannah Nicholas for updating the orders to reflect the new rule numbering in the Court of Protection Rules 2017. Feedback upon the orders, or suggestions for further precedents, are always welcome to alex.ruckkeene@39essex.com.
Case Management Pilot orders
Under the Case Pathways Practice Direction (PD 3B), the majority of cases will be assigned to one of three pathways:
1. The Personal Welfare Pathway;
2. The Property and Affairs Pathway; or
3. The Mixed Pathway
Welfare
Save where urgency makes it impossible, for all cases on the Personal Welfare Pathway, the court will make a number of initial directions on issue on the papers (i.e. without a hearing). These are set out at paragraph 4.4 of the Case Pathways Practice Direction, and are directed, in particular, in ensuring an effective use of Case Management Conference to be listed no later than 28 days after issue. A likely order to be made upon issue to be found ### here (and an order staying matters because the application is incomplete to be found ### here).
The court will also be likely upon listing also to make a Transparency Order providing for all hearings to take place in the case in public subject to suitable restrictions to prevent the publication of the names of the P and other relevant individuals. The likely transparency order that the court will make is to be found here (in an unofficial Word version, updated to include reference to the Court of Protection Rules 2017). If any alternative order is to be sought (in particular if there are factors which mean that the case should take place in private), it is important to apply for such an order as soon as possible, with evidence in support.
A precedent order prepared by the judiciary for a Case Management Conference is provided ### here. A fuller version, including a range of additional directions prepared by the authors, is provided here (note – this order has been updated as of November 2021 to reflect recent caselaw)
At the Case Management Conference, the court will list a Final Management Hearing. A precedent order to be made at a Final Management Hearing is provided ### here, and a fuller version prepared by the authors including a witness template is provided here.
Other hearings that may be made by the court in specific circumstances are provided include the following:
***Order appointing a health and welfare deputy
***Order appointing joint health and welfare deputies
Order for conveyance of P in circumstances amounting to deprivation of liberty
Order for the funding of a litigation friend for P
Order for the provision of documents from a care home
Order requiring disclosure of documents from a third party
Order for provision of documents by the police
Order for the instruction of experts
Order providing for CCTV monitoring of P
With thanks to Veronica Male of Brethertons LLP, an order wrapping up proceedings where P has died before a deputy can be appointed
Deprivation of liberty cases
Cases challenging DOLS authorisations under MCA 2005 s21A and applications for judicial authorisation of deprivation of liberty are not allocated to a Pathway, although the court is likely to seek to model its directions and approach upon the Personal Welfare pathway.
First directions order in a Section 21A application
***Re X model order for authorisation of deprivation of liberty outside scope of Schedule A1 (Note: this has been updated following the decision of the Court of Appeal in KW v Rochdale MBC [2015] EWCA Civ 1054 and the comments therein as to the wording of paragraph 11).
Property and affairs
A case will be allocated to the Property and Affairs Pathway at a point when it becomes clear that an application is resisted. When a case is allocated to this Pathway, paragraph 5.3 of the Case Management Practice Direction makes clear that the court will list the case for a Dispute Resolution Hearing, or transfer the case to the appropriate regional court for listing of this hearing and future case management. The judge will also order the respondent to file a summary of the reasons for opposing the application or for seeking a different order, if the reasons are not clear from Form COP5 submitted by the respondent. A precedent order allocating a case to the Property and Affairs Pathway is to be found ### here.
A precedent order for a Dispute Resolution Hearing is provided ### here.
Where an application is not opposed, the court is likely to deal with the matter on the papers.
A range of typical directions and final orders that might be sought in a property and affairs case are set out below.
***Order appointing a property and affairs deputy
***Order appointing a property and affairs deputy (local authority)
***Order appointing a property and affairs deputy (streamlined)
***Order appointing joint property and affairs deputies
***Order appointing joint property and affairs deputies (streamlined)
***Order appoint joint and several property and affairs deputies
***Order appointing joint and several property and affairs deputies (streamlined)
Order for the investigation of P’s finances
Order approving a statutory will
First directions order for applications concerning wills, settlements or approval of gifts
***Directions: objection to registration of EPA
***Directions: objection to registration of LPA
***Order: EPA objection dismissed
***Order: LPA objection dismissed
***Order: EPA objection withdrawn
***Order: LPA objection withdrawn
***Order severing provision in LPA
***Order severing provision in EPA
***Order EPA and LPA case transfer
Transparency
***The model order to which the Practice Direction makes reference has not yet been updated from that made under the Pilot. An unofficial corrected version in Word can be found here.
Unofficial annotated version with plain English explanation for litigants in person (note, this reflects the previous, more complicated version of the order, which had provisions for anonymisation of documents that have now been removed).
Section 49
An order is attached to the relevant Practice Direction.
Court of Protection Handbook 