In order to make this judgment public, I have used initials for individuals which do not correspond to their names and I have summarised the facts so as to omit details which may be recognisable.
II. The Background
P was married to J, and they had two children, H and X. The marriage ended in divorce many years ago, and P formed a long-term partnership with M. H is now married and has two children of her own. X has never married. His adult years have been plagued by alcohol and drug addiction.
X's behaviour towards his family has been extreme. The Applicants describe an incident more than a decade ago when X physically attacked P, threatening to kill him and requiring intervention from an armed police team [ 260 ]; and numerous acts of violence towards other family members and strangers. They have provided transcripts of voicemail messages left by X for J [ 217 -221 ] and H [ 266 -274 ], and I have listened to the recordings of a sample of them. They are exceptionally ugly and oppressive. They focus on demands for money, accompanied by explicit threats to hurt or kill the Applicants, H's children or himself. Of course, the Court has not heard X's account of these described incidents but the Applicants have also filed evidence of his violent behaviour which is beyond dispute: a copy of a restraining order [ 223 ], and confirmation [ 225 ] from a 'Witness Care' police officer that X pleaded guilty to three counts of acting in breach of that order, for which he received a lengthy prison sentence from which he has been released quite recently.
Several years ago P suffered a stroke. He has lived in residential care ever since and the Applicants were appointed as property and affairs deputies for him shortly afterwards. They visit him regularly. Their account is that X has only visited occasionally and uses very pejorative terms to describe his father's current medical condition.
Before his stroke, P was an enterprising businessman and conscious of the need to make provision for his estate after death. He is known to have made at least 5 wills, the latest (and therefore current) one some 10 years ago ("the 2009 will"). This will included provision for X as a beneficiary of two trusts. In respect of the second trust, P wrote a letter of wishes making clear that the benefit of the trust was primarily intended for X, but a trust structure had been provided because of concerns that outright inheritance would be contrary to his interests.
It is the Applicants' account that, shortly before his stroke, P was considering a new will to reflect the changed position of his companies. A draft found on his computer and in his 'to do' folder suggests that P may have been considering making provision for an outright interest to X. Nothing of that nature was ever concluded however before P's stroke intervened. The Applicants' account is that P would have gone on to take professional advice about his draft will and it is 'inconceivable' [ 214 ] that P would not have imposed a trust structure when he finalised the draft.
III. The proceedings to date
The COP1 statutory will application [ 25 ] was made in December 2018. On 7 th January 2019 a preliminary directions order was made in standard terms, including the appointment of the Official Solicitor as Litigation Friend for P. There were two extensions of the time limit for reporting to the Court before, by COP9 dated 20 th June 2019 [ 278 ], the Applicants applied for orders to dispense with any requirement to serve or notify X. By order made on 27 th June 2019 [ 296 ] this hearing was listed.
I have read a COP24 statement dated 4 th December 2018 signed by both Applicants [ 39 ] and also a further COP statement by each of them individually, both dated 4 th June 2019 [ 210 and 258 ]. Additionally Ms. Winston and Ms. Harrison have each filed position statements for the hearing and made oral submissions.
The substantive application originally proposed a statutory will which would have reduced X's benefit as compared to the 2009 will by reducing the size of the second trust by £50 000, widening the class of beneficiaries, and losing the benefit of the letter of wishes. However, over the course of the hearing, matters moved on. By the time of Ms. Harrison's final submissions a written memorandum was signed by both Counsel in the following terms:
IV. The Law
The normal requirements as to "HOW TO START AND RESPOND TO PROCEEDINGS, AND PARTIES TO PROCEEDINGS" are set out in Part 9 of the Court of Protection Rules 2017 ("the Rules"). Rules 9.6, 9.10 and 9.11 are relevant:
Practice Direction 9E sets out the specific procedural requirements of statutory will applications. Paragraph 9 is relevant:
The effect of PD9E paragraph 9 is that there are specific requirements for who should be named as respondent to statutory will applications but the requirements as to who should be notified are the general ones of Practice Direction 9B:
The Court has a general power to dispense with the requirements of any rule, pursuant to Rule 3.3:
Specifically, the Court has power to dispense with any requirement to serve a document, pursuant to Rule 6.10:
I have been referred to the decision of Senior Judge Lush in I v. D [2016] EWCOP 35 , where the parties agreed and the judge endorsed (at paragraph 40) the following guidance for an application to dispense with service:
Ms. Winston referred me to various provisions in respect of Convention rights:
In respect of whether Court of Protection hearings are conducted in private or in public, the relevant provisions are set out in Part 4 of the Court of Protection Rules 2017 and Practice Directions 4A and 4C.
The general rule is that a Court of Protection hearing is to be held in private:
However the 'ordinary' position is effectively that hearings are held in public subject to an injunctive order which prohibits publication of specified information, by virtue of Rule 4.3 and Practice Direction 4C:
The court may however, pursuant to PD4C paragraph 2.4, decide not to adopt the 'ordinary' position if there is good reason:
Where a hearing is held in private, pursuant to rule 4.2 and PD4A paragraph 7, the court may nonetheless authorise publication of information about the proceedings:
IV. The Parties' Positions
The Applicants contend that a statutory will application is necessary and in the best interests of P because of the significant change in his financial and personal circumstances since the 2009 will was executed. They point to the draft arrangements being considered by P shortly before his stroke as demonstrating his own wish to revisit the 2009 will.
The Applicants accepted at the outset of the hearing that X would be materially and adversely affected by the terms of the statutory will as proposed and so, in the normal application of the Rules, he should be a respondent to the proceedings.
However they inform the Court that X presently has no idea of the value of his father's estate; and if he were to learn of it because of these proceedings, his menacing behaviour – which has often been focused on obtaining money – would be aggravated, leading to very real risks to the safety of others and potentially jeopardising P's care home placement. Such is their fear of X's behaviour (to P, to themselves, and to members of the wider family) that, if X must be informed of the proceedings, they would withdraw the application.
By closing submissions, because of a change in the terms of the statutory will being proposed, the Applicants' position was that their application would not materially or adversely affect X.
The Applicants seek orders to ensure that documents relating to these proceedings are 'sealed' against disclosure to X and that any further hearings are conducted in private.
The Official Solicitor's position is that the Applicants' account of concerns is untested but credible, substantially backed up by documentary evidence. She regards their account as "stark and startling", raising the "realistic prospect that, if [X] is served or notified, he will behave in a violent and/or threatening manner."
Given the extreme nature of X's behaviour, even when the Applicants' proposal would have materially or adversely affected him, the Official Solicitor considers that limitation on his right to be involved in proceedings by dispensing with service requirements and conducting proceedings in private would be justified in order to give effect to the Article 6 and Article 8 rights of the Applicants. Without such dispensation, they would not proceed with the application and P would be deprived of the opportunity of appropriate provision by the court. Partial participation (eg by redaction of addresses) would not assist because X already knows too many of the addresses and contact details of relevant people. On balance, the Official Solicitor concluded that any potential unfairness to P and the Applicants if X has to be served outweighs the unfairness to X of not being served.
When the Applicants' proposals were altered to preserve X's position under the 2009 will, Ms. Winston informed the court that this reflected the likely position of the Official Solicitor if the substantive application had come to be considered after dispensation of any requirement to serve X.
If X is served with or notified of the application, the Official Solicitor supports the Applicants' request that the papers in respect of this hearing are not disclosed to him, provided that neither the Applicants nor the OS seek to rely in the substantive application on any of the information contained in these papers unless fresh evidence is adduced (which can be disclosed to X) and the final hearing is before a different judge. If there is no requirement to serve or notify X, the OS contends that future hearings should be held in private: though the risk of X finding out about proceedings through a public (but anonymised) hearing may be small, it would undermine the whole purpose of the decision not to serve or notify. However the OS contends that there is no need in such circumstances to 'seal' any of the documents because, pursuant to rule 5.9, as a non-party, X would in any event have to apply to the court for permission to see such documents. It is not presently possible to predict all of the reasons why someone, including X, may make such an application and therefore better to leave the decision until the circumstances arise.
V. Discussion
The regard which the court must and does give to matters of procedural fairness is indeed high. Even with 'credible' and partially corroborated accounts of quite extreme behaviour on the part of X, an application to exclude him completely from proceedings which are brought on a basis that will materially and adversely affect him challenges procedural instincts. If it comes down to balancing unfairness to X of being excluded from proceedings against unfairness to M, H and P of choosing not to pursue proceedings, in circumstances where a capacitous P has already made testamentary provision (albeit not recently), the element of choice is relevant. However, as a result of change to the terms of the application, the court is not required to determine that balancing exercise on this occasion.
The application is now brought expressly on the basis that X's position will not be materially or adversely affected [1] . X is therefore not within those categories of person identified at paragraph 9 of PD9E who must be joined as respondent (and therefore served with the application papers.) He is still however within those categories of persons identified at paragraph 5 of PD9B who should be presumed to have an interest in being notified of the application. If he is notified he could of course apply to be joined as party and in any event the Applicants' fears are engaged.
The presumption that X has an interest in being notified can be displaced but, in my view correctly, the Applicants have not sought to argue that X's position is as envisaged in paragraph 6 of PD9B. Even if X has not seen P recently, he is still P's child and the evidence is clearly that, even latterly and after the experience of incidents which form the basis of this application, P wished to make testamentary provision for him. The Applicants' contention that X should not be informed of the application is not because he is uninterested, but in order to prevent him from expressing his interest inappropriately.
The notification procedure does not itself involve service of application documents. If there is no requirement to serve X, then strictly speaking Rule 6.10 is not applicable and any dispensation of notification requirements is pursuant to Rule 3.3.
Where a person is not likely to be materially or adversely affected by an application, the balancing exercise of procedural fairness in excluding him from the proceedings is differently weighted:
Taking all the circumstances of this matter into consideration, and firmly on the basis that X's interests will not be materially or adversely affected by the substantive application, I am satisfied that it is appropriate to dispense with any requirement to notify X of these proceedings (or serve him with the application papers.)
The implications of this decision for future conduct of the proceedings have to be considered. I am satisfied that there is good reason for not making the 'ordinary' order that future hearings be conducted in public. X's interests are not going to be affected by the application, so any evidence heard will relate only to potential provision for others. In those circumstances, even though the evidence of matters on which their fears are based is untested, I am satisfied that there is need for the court to take an approach which protects P, the Applicants and members of the wider family from the kind of behaviour which has led to imprisonment for breach of a restraining order. The (very real) public interest in open justice can be met by an order permitting publication of this judgment, and future consideration of such an order in relation to any judgment on the substantive application.
On the basis that X will not be party to these proceedings and will therefore in any event have to make an application to the court for disclosure of documents to him, I agree with the OS that it is not appropriate at this point to make any decision about 'sealing' documents.
VII Conclusion
The application as now formulated does not materially or adversely affect X, so there is no requirement to serve him with the application. I am satisfied that it is appropriate to dispense with any requirement to notify him of the application. Any future hearings in this matter will be conducted in private (subject to further order).
In order to progress the substantive application, I will make a direction in standard terms that the Applicants and the Official Solicitor are required to notify the court within 28 days as to whether a hearing is required and any further directions they seek.
HHJ Hilder
st October 2019
Note 1 he Applicants’ position does not of course bind the ultimate decision of the court but it is unlikely that the court would be satisfied that it is in P’s best interests to reduce X’s share by comparison to provision in P’s existing will where neither the Applicants nor P’s own representatives seek such reduction. If such circumstances did arise, the question of X’s involvement in proceedings could be considered again. [Back]