Non-party claim for court material in Court of Protection
The high point of open justice litigation from last year is the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38,  3 WLR 429 where Mr Dring, on behalf of asbestosis victims (not parties to the litigation), applied for release of court documents (for more commentary on the Supreme Court decision see here). The case concerned asbestos and which had been settled (ie there was no formal judgment). This post looks at a case in the Court of Protection (Re Z  EWCOP 55 (20 December 2019), Morgan J) which explains and develops the Cape Intermediate v Dring principles in another civil proceedings jurisdiction.
In Dring, a High Court master had made an extensive order for release of court material in relation to Mr Dring’s application. The Court of Appeal narrowed this order; and against cross appeals by both parties the Supreme Court upheld the appeal order. The position defined by the Supreme Court applies to release of court materials from all forms of court proceedings (civil, family, criminal etc) (as Morgan J emphasises in the Re Z  EWCOP 55 (20 December 2019) considered in this post).
The Supreme Court examined to what extent can any court under CPR 1998 r 5.4C (or principles derived from that rule in non-CPR 1998 jurisdictions: see eg Court of Protection Rules 2017 r 5.9) direct release of court material to a non-party; or can do so under the court’s inherent jurisdiction. Giving further Supreme Court impetus to principles discussed in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 it was held in Cape Intermediate v Dring that the following material can be released by order of a court:
- skeleton arguments and other written submissions (Cape Intermediate in CA at ; GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection  1 WLR 984);
- documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd  EWCA Civ 2,  1 WLR 2253; and see CPR 1998 r 31.22);
- witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports, but not exhibits to these; and
- any other document which it is necessary for the court, in its inherent jurisdiction, to release to comply with the open justice principle.
The significance of this for family lawyers is that the Supreme Court emphasised that these principles apply to all proceedings regulated by the common law, which includes family proceedings. Certain redactions and anonymisation – for example children’s, and maybe certain parties’, names – but application can still be made within the terms of Cape Intermediate v Dring.
Open justice and the Court of Protection
Cape Intermediate v Dring was considered fully in Re Z  EWCOP 55 (above). On uncontested medical evidence, Morgan J held that Z lacked capacity to manage his property and financial affairs. His wife, brother and daughters had been involved in his Court of Protection proceedings and consented to the remainder of the order. Part of this (see (vi)) dealt with four declarations: (1) as to terms agreed for contact between Z and his brother and (2) and three, by consent, in relation to certain lasting powers of attorney in relation to Z. The judge explained that, when he made these declarations, by consent, ‘I had to consider, and I did consider, that it was proper for the court to make declarations by consent’ (at (vii)). This is relevant to his ‘judicial decision’ (see below).
Z’s son, JK, had not taken direct part in the proceedings (of his own choice; though his sisters had). After conclusion of the case, he wanted to have released certain material from the Court of Protection file which had been before the judge when he made his order. His application was refused. The judge considered that he had not proved sufficient grounds to justify an order ().
In doing so, Morgan J carefully applied open justice principles as explained, for example, in Guardian v Westminster (above) and, seven years later, affirmed in the Supreme Court in Cape Intermediate v Dring (above). He was conscious that what he said was an important working out of the Cape Intermediate v Dring principles and gave judgment in open court accordingly. The principles he considered and the conclusions he reached would apply equally should a similar situation arise in proceedings in the family courts.
‘A judicial decision’
In Cape Intermediate v Dring there was no judgment, still less any order. In Re Z there was no contested hearing at all; but a full judgment on JK’s application (on which this post is based). That said, aspects of the case involved, in part, a decision-making process for the court. This was critical to his decision, as Morgan J explained:
 … The open justice principle is engaged in relation to those parts of the order which involved a judicial decision. The declaration as to the capacity of Z involved a judicial decision. As regards the declarations by consent, there was an element of judicial decision making involved but there was not a judicial decision in relation to the underlying dispute about the powers of attorney, because the parties had settled that dispute. Accordingly, in relation to the substantial body of evidence which related to that dispute, the open justice principle is not engaged; however, I have power to allow JK to have access to that material if there are strong grounds for holding that it is in the interests of justice to allow him to have access. As regards the remainder of the material which was provided to the court in relation to matters which were settled and which were the subject of other parts of the order of 26 November 2018, the open justice principle is not engaged but, as before, I have power to allow JK to have access to that material if there are strong grounds for holding that it is in the interests of justice to allow him to have access.
Morgan J summarised the scope of the open justice principle (at ) as applied here and as set out in Cape Intermediate v Dring. In his view this included:
- Cape affirms that the open justice principle applies ‘to all courts and tribunals exercising the judicial power of the state’; and it therefore applied to the Court of Protection (para (i));
- The court in question decides ‘what the principle requires in terms of access to documents or other information placed before the court’ ((ii));
- The principle has two principal purposes ((iv)-(vi)):
- to enable public scrutiny of the way in which courts decide cases; this is in order to hold the judges to account for their decisions and to enable the public to have confidence in them; and
- to enable the public to understand how the justice system works and how decisions are taken; for this purpose, the public have to be in a position to understand the issues and the evidence adduced; the public need to have access to written material and should not be confined to what is expressed orally in court;
- An applicant seeking access has no right to be granted access, save to the extent that the rules confer such a right ((viii)). A person seeking access must show
- a legitimate interest in doing so ((xi)); and
- must explain why granting him access will advance the open justice principle;
- Relevant considerations for the court include the purpose of the open justice principle and the potential value of the information in question in advancing that purpose; balanced by any perceived ‘risk of harm to the judicial process or the legitimate interests of others’ ((xii)-(xiii));
- The applicant will be expected to pay the costs of granting access ((xvii));
And Morgan J concludes his list (at (xviii)) by quoting Lady Hale in Cape Intermediate v Dring:
 …. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.
The decision of the court on release of material, even though there had not been contested proceedings, therefor turned on the element of judicial decision-making. There had been certain judicial decisions: for instance as to whether (on the basis of medical evidence) there should be any finding on capacity at all; and then whether the declarations in the order should be made.
On that basis and of the principles in Cape Intermediate v Dring summarised above, Morgan J rejected JK’s applications both under Court of Protection Rules 2017 r 5.9 (on analogy with Civil Procedure Rules 1998 r 5.4C). He found that JK had not done enough to establish that in this case the open justice principle went far enough to justify release.