P (Discharge of Party), Re [2021] EWCA Civ 512 (16 April 2021)

P (Discharge of Party), Re [2021] EWCA Civ 512 (16 April 2021)

The Court of Appeal held that the procedure adopted by the Court of Protection in discharging the appellant as a party without notice, without disclosure of evidence or reasons, and without opportunity to participate did not satisfy the requirements of procedural fairness, open justice, or the appellant's rights under Articles 6 and 8 ECHR. The test of strict necessity was not met, and alternative procedures could have been adopted to protect P's best interests while affording the appellant fair participation. The orders were set aside.

Citation
[2021] EWCA Civ 512
Parties
Appellant: AA; First Respondent: London Borough of Southwark; Second Respondent: P (by her litigation friend The Official Solicitor); Third Respondent: South London and Maudsley NHS Foundation Trust; Special Advocate: Stephen Cragg QC
Jurisdiction
England and Wales
Judgment Date
16 April 2021
Procedural Posture
Appeal From Court of Protection / Judgment on Appeal
Outcome
Appeal allowed; orders set aside
Legal Topics
Party Discharge, Closed Hearings, Procedural Fairness, Best Interests, Article 6 ECHR, Article 8 ECHR, Disclosure, Court of Protection Procedure
Mental Capacity Human Rights Family Law Party Discharge Closed Hearings Procedural Fairness Best Interests Article 6 ECHR +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

AA

Appellant

London Borough of Southwark

First Respondent

P (by her litigation friend The Official Solicitor)

Second Respondent

South London and Maudsley NHS Foundation Trust

Third Respondent

Stephen Cragg QC

Special Advocate

Procedural Posture

Appeal From Court of Protection / Judgment on Appeal

Legal Issues

  1. 1 Whether the discharge of the appellant as a party without notice and without disclosure of evidence or reasons was lawful and fair
  2. 2 Whether the procedure adopted satisfied the requirements of procedural fairness, open justice, and the appellant's rights under Articles 6 and 8 ECHR
  3. 3 Whether the Court of Protection's powers to exclude parties and withhold information were exercised in accordance with the overriding objective and legal principles

Ratio Decidendi

The Court of Appeal held that the procedure adopted by the Court of Protection in discharging the appellant as a party without notice, without disclosure of evidence or reasons, and without opportunity to participate did not satisfy the requirements of procedural fairness, open justice, or the appellant's rights under Articles 6 and 8 ECHR. The test of strict necessity was not met, and alternative procedures could have been adopted to protect P's best interests while affording the appellant fair participation. The orders were set aside.

Court Disposition

Appeal allowed; orders set aside

Orders

  • The orders discharging the appellant as a party and adjourning her application for reasons are set aside.
  • Directions for future procedure to ensure fairness and protection of P's best interests.