DisclosureDisclosure:COP Rules Part 16Disclosure(reproduced in full in appendix A)Disclosure:COP Rules Part 16DisclosureDisclosureDisclosure:issues in practiceDisclosureDisclosure:issues in practiceDisclosureDisclosure:issues in practiceDisclosureDisclosure:issues in practiceDisclosure(reproduced in full in appendix A)Disclosure:issues in practiceDisclosureDisclosure:issues in practiceDisclosureDisclosure:issues in practiceDisclosure:generalDisclosureDisclosure:specific categories of documentsDisclosure:issues in practiceDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureDisclosure:withholding on confidentiality/welfare groundsDisclosureLegal professional privilegeDisclosureLegal professional privilegeDisclosureLegal professional privilege:litigation privilegeLegal professional privilege:legal advice privilegeLegal professional privilegeDisclosureLegal professional privilege:litigation privilegeLegal professional privilege:legal advice privilegeLegal professional privilegeDisclosure(reproduced in full in appendix A)Legal professional privilege:litigation privilegeLegal professional privilege:legal advice privilegeLegal professional privilegeDisclosureLegal professional privilege:litigation privilegeLegal professional privilege:legal advice privilegeLegal professional privilegeDisclosure(reproduced in full in appendix A)Legal professional privilege:litigation privilegeLegal professional privilege:legal advice privilegeLegal professional privilegeDisclosureLegal professional privilege:litigation privilegeLegal professional privilege:legal advice privilegeLegal professional privilegeDisclosure
Overview
12.91COPR Part 16 contains provisions relating to disclosure which are based upon those in CPR Part 31. In both, a party discloses a document by stating that it exists or has existed;
1CPR 31.1; COPR r132. the CPR defines a ‘document’ broadly as ‘anything in which information of any description is recorded.’
2CPR 31.4. While no equivalent description is given in the COPR it is suggested that the same definition should apply.
12.92Because proceedings before the Court of Protection are, at heart, inquisitorial rather than adversarial,
3Re G [2014] EWCOP 1361, [2014] COPLR 416 at para 26 per Sir James Munby P, endorsing Cheshire West and Cheshire Council v P and M [2011] EWHC 1330 (Fam), (2012) 15 CCLR 48, [2011] COPLR Con Vol 273 at para 52 per Baker J. it has become increasingly apparent that the provisions of COPR Part 16 are not altogether well-suited to the requirements of applications under the MCA 2005. In
Enfield LBC v SA and others,
4[2010] EWHC 196 (Admin), [2010] COPLR Con Vol 362. McFarlane J (as he then was) commented adversely on the fact that the rules contained in COPR Part 16 were based upon:
… ordinary civil litigation with the expectation that disclosure will be based on whether documents ‘adversely affect [a party’s] own case’ or ‘support another party’s case’ (COPR r133(2)(b)) whereas the approach of the family court is that there is a duty to give
the court all relevant material.
5SA [2010] EWHC 196 (Admin) at para 57 (emphasis in original).He continued that there could be:
… no justification for there being a difference of this degree on the issue of disclosure between the family court and the Court of Protection in fact finding cases of this type where really the process and the issues are essentially identical whether the vulnerable complainant is a young child or an incapacitated adult. For the future in such cases in the Court of Protection it would seem to be justified for the court to make an order for ‘specific disclosure’ under COPR 2007 r133(3) requiring all parties to give ‘full and frank disclosure’ of all relevant material.
6SA at para 58.See further in this regard, para 12.101 below.
12.93Because they essentially do not ‘fit’ the approach of the Court of Protection, the majority of the provisions relating to disclosure in COPR Part 16 will not be invoked in most applications. It may be that this will change in future, as the Case Management Pilot directs that the court must in relation to cases on the welfare pathway give specific consideration to disclosure at the case management hearing (see further para 10.21).
7Case Management Pilot PD para 4.5(l). For the present, however, these provisions are not discussed in detail in this chapter, the focus rather being upon the disclosure issues that arise most commonly in practice.
Disclosure issues in practice
12.94It is important to note that disclosure issues can arise at the very outset of proceedings in (at least) two ways.
12.95First, if an application is brought on an ex parte basis (ie in the absence of the respondent) then, as discussed at para 10.68 above, there is a duty upon the advocate making that application to give full and frank disclosure of all relevant matters, including those tending to suggest that the application should not be brought.
12.96Second, the decision in
Loughlin v Singh and others8[2013] EWHC 1641 (QB), [2013] COPLR 371. stands as a clear endorsement of the propositions:
•that the rules that apply in civil proceedings as regards the privileged status of expert reports do not apply before the Court of Protection (see further para 12.116 below); and
•(in consequence) that there is a duty to bring relevant material contained in expert evidence within the possession of the applicant to the attention of the court at the outset of proceedings.
12.97In that case, an application had been made to the Court of Protection for a professional deputy to be appointed to manage the property and affairs of an adult who had suffered a number of serious injuries in a road traffic accident. The solicitors making the application were in possession of expert evidence which suggested that he
had the requisite capacity, but did not bring this to the attention of the court. A district judge appointed the deputy without a hearing. In subsequent personal injury proceedings, the issue of the man’s capacity to manage his property and affairs was hotly contested by the defendant. Kenneth Parker J found – on a fine balance
9Para 45. – that the claimant lacked capacity, such that there was ultimately no inconsistency between his decision and that which underpinned the appointment of the deputy. The judge was, however, highly critical of the actions of the solicitors, noting in an appendix to his judgment that:
14. In my view, this was a case where all available medical evidence relevant to the issue of capacity should have been disclosed to the court [of Protection] … It is then almost certain that the court, faced with this welter of conflicting medical opinion and aware [of other unsatisfactory aspects of an expert’s report] would have refused to determine the application on paper, but would have insisted on an oral hearing at which the issue could have been fully and properly considered. I am unwilling to speculate as to what the outcome might have been if a proper procedure had been followed at that time, but the possibility cannot be ruled out that the court might at that time have found that the claimant had capacity. In the light of my own conclusion such a finding, although not unreasonable, would have been incorrect.
15. All I need add is that the lamentable failures that occurred here, and the invidious position in which the judge in the Court of Protection was unwittingly placed, must never be repeated. The issue of capacity is of very great importance, and all involved must ensure that the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision.
12.98While the decision in Loughlin v Singh is not, strictly, binding on practitioners appearing before the Court of Protection, as it was a decision taken in the Queen’s Bench Division, nor do these passages appear to reflect argument advanced to the court based upon analysis either of the MCA 2005 or of the COPR, it is suggested that the passages set out above are entirely correct in their approach and should be followed.
12.99Once proceedings are under way, it would appear that the injunction given by McFarlane J in SA discussed at para 12.92 above is routinely ignored, orders for full and frank disclosure in welfare proceedings being made very rarely (if at all). It is to be hoped that this will change in light of the specific focus upon disclosure in the Case Management Pilot.
12.100It is also at present unusual for the Court of Protection routinely to make an order for general disclosure, ie for each party to disclose those documents on which he relies, and documents which adversely affect his own case; adversely affect another party’s case; or support another party’s case. Indeed, in some cases, no disclosure orders will be made at all.
12.101In welfare cases, however, orders are commonly made for the provision of specific categories of documents (for instance of medical or social services records), not to all the parties to the proceedings, but rather only to those with a specific need to have sight of them. This happens most obviously where P is a party to the proceedings and orders are made requiring (for instance) either all or part of the records held by the local authority’s social services department relating to P to be provided to their litigation friend. The authors’ experience is that these orders are made without judicial examination of the basis of the power under which they are made. It may, on a proper analysis, actually be that they are not specific disclosure orders
10Made under COPR r133(3). at all, but rather orders made under the provisions of COPR r107 (discussed at para 12.31 above) for the provision of information that one party has unique access to.
Withholding disclosure on confidentiality/welfare grounds
12.102No matter the power under which such orders are made, one question arises with some regularity, namely the extent to which it is permissible for orders to be made allowing for documents to be seen by one party but not by others. Orders are regularly made providing (for instance) that social services records relating to P are to be provided to P’s litigation friend (and can, in turn, be provided to any independent expert instructed to report to the court), but either making no provision for those records to be provided to other parties to the proceedings, or giving P’s litigation friend a ‘vetting’ role so as to allow their litigation friend to determine which documents should be provided to other parties. The COPR do not contain any test or threshold for denying disclosure (whether to one or to more than one party), rule 138 merely providing in material part that:
(1)A party who wishes to claim that he has a right or duty to withhold inspection of a document, or part of a document, must state in writing –
(a)that he has such a right or duty; and
(b)the grounds on which he claims that right of duty.
12.103Moreover, as COPR r138 can only be invoked at the time that a disclosure list is provided,
11COPR r138(2). and as such disclosure lists are rarely, if ever, in fact used in the Court of Protection, it would appear that rule 138 does not, in fact, serve as the basis upon which disclosure of such materials as social work records is limited. The precise basis upon which such orders are made is therefore not entirely clear.
12.104Following the decision of Sir James Munby P in
RC v CC and X Local Authority,
12[2014] EWHC 131 (COP), (2014) 17 CCLR 127. it is, however, clear that the court does have the power to withhold disclosure of reports or records.
RC did not spell out the basis upon which the power arose,
13See para 20. but it is suggested that it is perhaps most obviously under the court’s general powers under COPR r25 (COPR Pr3.1 for cases falling under the Case Management Pilot).
12.105The decision in RC also set out the test for the circumstances under which such orders can be made where a party wishes to withhold documents on the basis of their confidentiality and/or their adverse impact upon P (the position where disclosure is withheld on the basis of privilege is discussed at paras 12.112 onwards below).
12.106Before addressing the decision in RC, it is worth noting the competing principles in play, in particular:
•P’s right to the maintenance of confidentiality in relation to what will often be highly sensitive personal data (a right which is recognised at common law and by Article 8 ECHR right to respect for private and family life), and is enshrined in statutory provisions such as the Data Protection Act 1998). In the case of children, there has also been a historical acceptance that the particular circumstances in which social services records are created give rise to a presumption that they should be immune from disclosure on a public interest basis.
14Re M (a minor) (disclosure of material) [1990] 2 FLR 36. This case must now be treated with caution: Dunn v Durham CC [2012] EWCA Civ 1654, [2013] 1 WLR 2305 at para 45 per Munby LJ. •The rights of other parties to have sight of, and the ability to respond to, information contained in those documents if any reliance is to be placed by the court upon that information, whether that reliance is to be direct – ie the judge himself reading the documents – or indirect – ie an expert reporting to the court based upon the documents. The proper exercise of those rights is integral to enabling the fairness of the proceedings, a principle enshrined both at common law and in Article 6 ECHR.
12.107In
RC, Sir James Munby P drew direct analogies between the position that prevailed in proceedings in relation to children and those that should apply in the Court of Protection. He placed particular reliance upon three decisions,
15In re D (minors) (adoption reports: confidentiality) [1996] AC 593; Re B (disclosure to other parties) [2001] 2 FLR 1017; and Dunn v Durham CC [2012] EWCA Civ 1654, [2013] 1 WLR 2305. and his conclusions can be summarised thus:
•It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.
•When deciding whether to direct that a party referred to documentation should not be able to inspect the part which refers to them, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to P.
•If it would, the court should next consider whether the overall interests of P would benefit from non-disclosure, weighing on the one hand the interest of P in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.
•If the court is satisfied that the interests of P point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.
•In all cases, the test for non-disclosure is whether it is strictly necessary to meet the risk identified by the court.
16See paras 15–17. 12.108Sir James Munby P also noted in
RC that consideration should always be given to the fact that disclosure is never a binary exercise, and a proper evaluation and weighing of the various interests may lead to the conclusion that i) there should be disclosure but ii) the disclosure needs to be subject to safeguards such as limits to the use that may be made of the documents, in particular so as to limit the release into the public domain of intensely personal information about third parties. Further, he emphasised, the position initially arrived at is never set in stone; it may be appropriate to proceed one step at a time.
17See paras 18–19.12.109A further factor that did not arise in
RC but may well do in a future case is where P themselves has views as to whether or not information should be disclosed to a particular party or parties. Whilst those views will not be determinative, it is likely that considerable weight will be placed upon them by analogy with the position adopted in
Local Authority X v HI,
18[2016] EWHC 1123 (Fam). concerning whether sensitive information revealed by a boy subject to care proceedings which he did not wish disclosed to his parents or stepmother.
12.110
RC is of also significance because Sir James Munby P confirmed that the first instance judge had had the power to direct that some documents could be disclosed solely to the advocate for a party, with a direction that the representative could not disclose or discuss it with the client.
19See paras 21–23. The appeal was allowed in this regard because of a doubt as to the basis upon which the power had been exercised. He made it clear that such limited disclosure can only be ordered if there is clear and express consent on the party of the affected party’s legal representative, who should only give such consent if they are satisfied that they can do so without harming their client’s case.
20RC at para 38, endorsing dicta of Moses LJ in R (Mohammed) v Secretary of State for Defence [2012] EWHC 3454 (Admin), [2014] 1 WLR 1071.12.111Notwithstanding the endorsement by Sir James Munby P of ‘confidentiality rings’, it is suggested that any legal adviser should be very cautious before advancing or agreeing to one. The ‘very serious problems’ it creates between lawyer and client have led to doubts being placed upon the decision in
Mohammed upon which Sir James Munby P relied.
21AHK, AM, AS, FM v Secretary of State for the Home Department [2013] EWHC 1426 (Admin) at paras 20–28 per Ouseley J. The decision in
RC may therefore not necessarily be the end of the story in this regard.
Privilege
12.112Disclosure of documents can also be resisted on the basis that they are subject to legal professional privilege: ie that they represent ‘protected’ communications between lawyer and client (and, in certain circumstances, with third parties).
12.113This is a very large topic. Space precludes a detailed discussion of it here,
22The reader is directed, in particular, to C Passmore Privilege, Sweet & Maxwell, 3rd edn, 2013. but the position is set out in summary form in the paragraphs that follow. These paragraphs must be read subject to the caveat that, with the limited exception of the case of
Loughlin v Singh discussed above (para 12.96), there has been no reported judicial consideration of the application of the law of privilege to proceedings before the Court of Protection. The paragraphs below therefore represent the authors’ view that the closest analogy to such proceedings are those involving children, and that the principles derived in those proceedings can and should be applied before the Court of Protection.
12.114There are two forms of legal professional privilege: legal advice privilege and litigation privilege.
•Legal advice privilege protects confidential communications between a client and their professional legal adviser that is made for the purpose of seeking or giving any legal advice or related legal assistance. It is not necessary for it to apply that there is litigation in prospect.
23Passmore, Privilege, para 1-002. •Litigation privilege protects confidential communications between either the client or their legal adviser or their legal adviser and a third party (such as a factual or an expert witness), where such communications come into existence for the dominant purpose of being used in connection with actual, pending or contemplated litigation.
24Passmore, Privilege, para 1-002. 12.115Where a litigation friend has been appointed to act on behalf of a party (whether that be P or a protected party: see chapter 11), and whilst there is no reported case from the Court of Protection on the point, it is suggested that for these purposes the litigation friend stands in the shoes of the client. By analogy, we note that the Court of Appeal accepted in
RP v Nottingham City Council (it appears without argument) that the file maintained by a solicitor retained by the Official Solicitor where he was acting as litigation friend for a protected party in care proceedings contained privileged material.
25[2008] EWCA Civ 462, (2008) 11 CCLR 316 at paras 34–35, per Wall LJ.12.116Litigation privilege is ‘essentially a creature of adversarial proceedings’; it does not therefore extend to protect expert reports obtained in the context of care proceedings involving children.
26Re L (a minor) (police investigation: privilege) [1997] AC 16 at 27 per Lord Jauncey. It is suggested that this applies equally in the context of proceedings under the MCA 2005. Indeed, this would appear to be (albeit implicitly rather than expressly) the basis upon which Kenneth Parker J held in
Loughlin v Singh (para 12.96 above) that all relevant expert reports in the possession of the claimant’s solicitors should have been disclosed to the Court of Protection when making an application for the appointment of a deputy to manage his property and affairs. It should also be noted that it is clear from the COPR that
instructions to an expert are not privileged against disclosure.
27COPR Pr126(5)/COPR r126(5).12.117It would, further, appear that it may well be the case that litigation privilege cannot be claimed in the context of other classes of documents or correspondence created in the context of proceedings before the Court of Protection.
28Following the approach adopted by the House of Lords in Three Rivers (No 6) [2004] UKHL 48, [2005] 1 AC 610. Moreover, even if litigation privilege can be claimed, a number of family law cases have suggested this may be overridden by a duty to disclose documents where the court must determine what is in the best interests of the child.
29See, in particular, Oxfordshire CC v M [1994] 2 WLR 393. It is suggested that such an approach would be likely also to be taken by the Court of Protection.
12.118The position as regards legal advice privilege, however, is very different. Save for rare exceptions involving fraud or misconduct, the privilege has been held to be an absolute one even in respect of proceedings involving the determination of the best interests of children.
30AB (care proceedings: disclosure of medical evidence to police) [2002] EWHC 2198 (Fam), [2003] 1 FLR 579. It is suggested that the same applies in proceedings under the MCA 2005 so as to protect lawyer-client communications, communications between a litigation friend appointed to act on behalf of P (or a protected party other than P, or a child) and the lawyers that that litigation friend has retained.
12.119It should be emphasised that the mere fact that a person lacks capacity to conduct the proceedings does not mean that they should not be afforded the same protections as would be afforded to others. This means that, for instance, a litigation friend and lawyers instructed on behalf of P (or a protected party other than P or a child) must be very careful before putting before the court, whether by way of attendance notes of visits or otherwise, material that might incriminate their client if factual allegations are made against the individual in question.
31See, by analogy, Re E (A Child) [2016] EWCA Civ 473.