By Ed Madden

Copyright imt

In March 2005, the Court of Protection delivered its judgment on a preliminary issue that had arisen in a case before the Court as to whether the press should be notified of the hearing, and whether a written judgment of all or part of it should be published with appropriate anonymisation and redaction.

When the matter came on for hearing, the man at the centre of the case, ‘P’ was represented in the proceedings by the Official Solicitor. P is a person ‘who used to be in the public eye’ and in whose affairs there was likely to be ‘natural public curiosity’.

He now suffered from severe dementia and lacked any meaningful cognitive capacity. He was unable to comprehend, retain or use information relevant to a decision to make a gift or manage his affairs. He was unable to communicate either verbally or otherwise. His life expectancy was limited. P’s condition was not generally known to others outside his immediate family.

The application was brought by P’s wife, ‘W’, with the support of his family. P had significant assets in his own and joint names as well as significant trust assets in which he had an interest. W applied for authorisation to make a statutory will and enter into a number of lifetime dispositions on her husband’s behalf. The objective of these arrangements was to ensure ‘a more orderly and tax effective succession’ to the assets in question, than otherwise would occur on his death if nothing were done.

The procedural rules governing proceedings in the Court of Protection are set out in the Court of Protection Rules (‘COPR’) 2017. Under COPR 4.1, the general rule is that Court of Protection proceedings are to be heard in private where attendance is restricted to the person the subject of the proceedings, the parties, their legal representatives, and other named individuals or officials. The rationale for the privacy provisions is that persons who have mental capacity can deal with their private affairs confidentially. COPR 4.1 represents an acknowledgment that a person who lacks mental capacity to deal with his/her affairs should be entitled to a similar type of privacy.

Provision is made in COPR 4.3 allowing the Court to make an order departing from the general rule by ordering that a hearing be held in public, with such restrictions on publication of information as the Court may specify. The normal practice now under Practice Direction 4C is for the Court to make a transparency order for the hearing to be heard in public but with reporting restrictions to prevent identification of the person involved; unless it appears to the Court that there is good reason for not making such a transparency order.

In the present case, no order had been made as W had issued a Court of Protection application (COP 9) requesting that the Court decline to make a transparency order without hearing from her, submitting that there were good reasons not to make such an order.

Giving his ex tempore judgment on the application, Mr Justice Rajah said that the public interest lies in knowing what goes on in Court. It is primarily about ensuring public scrutiny and accountability of court process and decision making. There may be features of a particular case that enhance the public interest in transparency. However, a clear distinction must be drawn between the public interest and what the public is interested in. While the public may be curious about the private affairs and wills of those in the public eye, it does not follow that there is a legitimate public interest in those matters.

In the present case, a public hearing that identified P would inevitably result in significant publicity to satisfy public curiosity. That would be a serious intrusion in P’s private life and that of his family. This could have serious consequences for P and the family. The general proposition that a transparency order would protect P’s privacy was, in this case, displaced. It would not be possible to craft reporting or other restrictions that would protect P’s identity and privacy and that of his family.

There was a very significant risk of ‘jigsaw identification’ unless the reporting restrictions (and any other measures) were so stringent as to make a public hearing meaningless. The judge said that for essentially the same compelling reasons, he had reached the conclusion that there would not be a published judgment on the substantive application. Any judgment would have to be so heavily redacted that it would make little sense.

No notice of the present hearing was given to the press. The Court authorised only publication of its summary judgment relating to privacy, which was delivered in private and ‘shorn’ of the details as to why jigsaw identification posed such a risk in the present case.

Reference: [2025] EWCOP 11 (T3)