Alex RKHenke J has followed the Closed Hearings and Closed Material Guidance ([2023] EWCOP 6) and produced a judgment “to enable disclosure at an appropriate point in the future and to enable the speedy and proportionate determination of any appeal if this decision is appealed by any party. The story disclosed in P (Application to Withhold Closed Material: Concurrent Civil Proceedings) [2024] EWCOP 26 is a sad and difficult one involving a young man who suffered serious injuries (including a brain injury), and whose parents were – on the evidence before the court – both not able to act in his interests in the resulting civil litigation, and also profoundly distrustful of the entirely judicial process.
Indeed, the application before Henke J arose out of failed attempts by the solicitors instructed by the Official Solicitor to engage with P to progress the civil claim on his behalf. In the course of those attempts, the Official Solicitor had become sufficiently concerned by the actions of his parents that, having failed to persuade the local authority to take steps, she brought an application on his behalf in the Court of Protection for declarations and decisions about P’s welfare, including contact.
In the course of that separate application, Henke J was asked to withhold material from his parents for a time-limited period and for a specific purpose, namely for P’s capacity to be assessed. For the reasons set out with admirable clarity in the judgment, Henke J acceded to the application, although with one important amendment, noting at paragraph 89 that:
Throughout this part of the judgment dealing with closed material, I have written at this stage. Any interference with the rights of any party must be lawful, necessary, and proportionate. This court has a duty to keep the issue of disclosure under review and to only make an order for such duration as is necessary and proportionate on the facts of this case. On the facts as presently before this court, I cannot see any justification for withholding the material from P’s parents once the court assessment proposed by the Official Solicitor has been served on P’s parents. The duration of the order will thus be until the assessment has been served on P’s parents or further order of the court, whichever is the sooner.
The judgment is also of note because it also featured an application by P’s parents to discharge all the previous orders made in the Court of Protection, on the basis that the personal injury proceedings should be the only proceedings before any court in relation to P. Henke J refused this application, noting at paragraph 78 that:
On behalf of the Official Solicitor, it is accepted that there are several issues which will require co-ordination between this Court and the King’s Bench Division including the management of any monies P may receive. Further, this Court may, in due course, be required to authorise any care arrangements put in place as a result of the civil proceedings, such as any arrangements depriving P of his liberty. This overlap between the two sets of proceedings is perhaps inevitable given the welfare concerns in relation to P were raised in the personal injury proceedings. However, there are significant and relevant differences between the two proceedings. The personal injury proceedings are about compensation for injuries received. The Court of Protection proceedings were initiated because of safeguarding concerns about P and concerns about his capacity to decide (amongst other matters) where he should live, who he should have contact with, and issues about his care and treatment. Those will be best interest decisions will be matters for this court.
79. Based on the papers currently before me, I agree with the Official Solicitor that as this case proceeds, there may be legitimate disputes to be determined in this court about where P should reside to receive the care he requires and potentially issues about whom he should have contact with. Accordingly, I do not agree with P ‘s parents’ argument that these proceedings should be dismissed, and all previous orders should be discharged. This court has jurisdiction. The proceedings before this court are necessary and have a purpose which cannot be fulfilled by the personal injury proceedings alone. The King’s Bench Division will determine the level of P’s compensation and his needs in that context. This court will consider his best interests when making any welfare orders that may be required in the future.
