Case managementCourt of Protection:duty to manageCourt of Protection:case managementCourt of ProtectionCourt of Protection:hearingsCourt of Protection:case managementCourt of ProtectionCourt of Protection:hearingsCourt of Protection:case managementCourt of ProtectionPractice Guidance:Court of Protection Practice Direction — Transparency Pilot (29 January 2016)Legal aidCourt of Protection:legal aidCourt of Protection:case managementCourt of ProtectionPersonal Support UnitCourt of Protection:Personal Support UnitCourt of Protection:case managementCourt of ProtectionMcKenzie friendsCourt of Protection:McKenzie friendsCourt of Protection:case managementCourt of ProtectionMcKenzie friendsCourt of Protection:McKenzie friendsCourt of Protection:case managementCourt of ProtectionMcKenzie friendsCourt of Protection:McKenzie friendsCourt of Protection:case managementCourt of ProtectionMcKenzie friendsLay representationCourt of Protection:law and guidance:lay representationCourt of Protection:case managementCourt of ProtectionMcKenzie friendsLay representationCourt of Protection:law and guidance:lay representationCourt of Protection:case managementCourt of ProtectionMcKenzie friendsLay representationCourt of Protection:law and guidance:lay representationCourt of Protection:case managementCourt of ProtectionPractice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas WallCourt of Protection:case managementCourt of Protection:appealsCourt of ProtectionAppealsCourt of Protection:case managementCourt of Protection
4.111By COPR r5, the court is required to further the overriding objective by actively managing cases. Where the Case Management Pilot applies, the relevant rule is COPR Pr1.5, and the requirements upon the court to undertake active case management are significantly strengthened. See further chapter 9.
Hearings
4.112Most hearings take place in court, but they can take place in a hospital, nursing home or other agreed venue where this is necessary in order to enable the relevant person to participate. As now retired District Judge Gordon Ashton OBE has observed on many occasions, the approach may be adversarial, inquisitorial or conciliatory according to the needs of the case.
4.113Historically, the general rule in the Court of Protection has always been that hearings are held in private. This was considered to reflect the personal, private, nature of the information which the court is usually considering. However, a transparency pilot scheme has been in operation since 29 January 2016 (see Court of Protection Practice Direction – Transparency Pilot). This provides that the court will ordinarily now order that any attended hearing shall be in public, subject to certain restrictions in relation to the publication of information about the proceedings, in particular the identity of the person concerned and family members. See further chapter 13.
Legal aid
4.114For property and affairs cases, public funding is not available. In most kinds of personal welfare cases it is severely restricted, and where available generally means-assessed. This issue is dealt with in chapter 6.
Personal Support Unit (PSU)
4.115The PSU volunteers at First Avenue House do not give legal advice. However, subject to resources, they may be able to support litigants in person by:
•prompting them to order their thoughts;
•tidying paperwork into a rational order, and indexing it;
•helping them to find out which forms they need to fill in, to complete them if they know what they want to say, and to take the paperwork to the appropriate customer service desk or court office;
•helping people find their way around the court building;
•assisting in discussions with court staff;
•going into court with the person to offer support;
•signposting clients to free legal advice or representation, or to access relevant advice online.
McKenzie friends and lay representation
McKenzie friends
4.116Litigants who cannot arrange legal representation have the right to have reasonable assistance from a suitable layperson, sometimes called a ‘McKenzie friend’.
4.117A McKenzie friend may:
•provide moral support;
•take notes;
•help with case papers;
•quietly give advice on any aspect of the conduct of the case.
4.118A McKenzie friend may not act as advocate or to carry out the conduct of litigation. Specifically, they may not:
•act as the litigant’s agent in relation to the proceedings;
•manage the litigant’s case outside court, for example by signing court documents;
•address the court, make oral submissions or examine witnesses.
See further chapter 6.
Lay representation
4.119COPR r3A (COPR Pr1.2 where the Case Management Pilot applies) now provides that the court may appoint a non-legal representative for the relevant person. Their function is to provide the court with information about the person’s wishes, feelings, beliefs and values, and to discharge any other functions directed by the court.
4.120That rule aside, lay representation is not generally allowed. The court should only be prepared to grant a right of audience or a right to conduct litigation to a layperson where there is good reason to do so, taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to laypersons automatically or without due consideration, and should not be granted for mere convenience.
4.121Examples of the type of special circumstances which have been held to justify the grant of a right of audience to a layperson, including a McKenzie friend, are that:
•the person is a close relative of the litigant;
•health problems preclude the litigant from addressing the court, or conducting litigation, and the litigant cannot afford to pay for a qualified legal representative;
•the litigant is relatively inarticulate and prompting by that person may unnecessarily prolong the proceedings.
1In this respect, see the Practice Guidance: McKenzie friends (Civil and Family Courts) issued on 12 July 2010 by Lord Neuberger of Abbotsbury (the then Master of the Rolls) and Sir Nicholas Wall (the then President of the Family Division). Appeals
4.122The appellate court will not interfere with the original decision unless the judge erred in principle or reached a conclusion that was wrong. See further chapter 18.
Enforcement of orders and declarations
4.123The court has all the powers of the High Court within the scope of its jurisdiction, and the COPR incorporate many of the enforcement provisions contained in the Civil Procedure Rules 1998. See further chapter 17.