The hearingWitnesses:evidenceHearing:day ofHearingFinal determination of applicationWitnesses:evidenceHearing:day ofHearingFinal determination of applicationWitnesses:evidenceHearing:private or publicHearingFinal determination of applicationWitnesses:evidenceHearing:opening speechesHearingFinal determination of applicationWitnesses:evidenceWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:evidenceWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:questioningWitnesses:evidenceWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:questioningWitnesses:evidenceWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:questioningWitnesses:handlingWitnesses:evidenceWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:evidenceWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:evidenceWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of application(reproduced in full in appendix A)Witnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from PWitnessesHearing:witness evidenceHearingFinal determination of applicationPractice Guidance:Facilitating the participation of ‘P’ and vulnerable persons in Court of Protection Proceedings (November 2016)(reproduced in full in appendix B):r3Witnesses:vulnerableWitnessesVulnerable witnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:vulnerableWitnessesVulnerable witnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:vulnerableWitnessesVulnerable witnessesHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from P:interpretersWitnessesInterpretersHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from P:interpretersWitnessesInterpretersHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from P:interpretersWitnessesInterpretersHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from P:interpretersWitnessesInterpretersHearing:witness evidenceHearingFinal determination of applicationWitnesses:hearing from P:interpretersWitnessesVideo-links:evidence byInterpretersHearing:witness evidenceHearingFinal determination of applicationWitnesses:video-linksWitnesses:remote evidence givingWitnessesVideo-links:evidence byHearing:witness evidenceHearingFinal determination of applicationWitnesses:video-linksWitnesses:remote evidence givingWitnessesVideo-links:evidence byHearing:witness evidenceHearingFinal determination of applicationWitnesses:video-linksWitnesses:remote evidence givingWitnessesVideo-links:evidence byHearing:witness evidenceHearingFinal determination of applicationWitnesses:video-linksWitnesses:remote evidence givingWitnessesVideo-links:evidence byHearing:witness evidenceHearingFinal determination of applicationWitnesses:video-linksWitnesses:remote evidence givingWitnessesVideo-links:evidence bySkype:evidence byHearing:witness evidenceHearingFinal determination of applicationWitnesses:video-linksWitnesses:Skype, evidence byWitnesses:remote evidence givingWitnessesVideo-links:evidence byHearing:witness evidenceHearing:closing argumentsHearingFinal determination of applicationHearing:negotiations duringHearingFinal determination of application
The day of the hearing
15.23Even more than is the case with directions hearing, it is important to get to court early on the day of the final hearing. This will allow for any last-minute discussions to take place and for steps to be taken in the event of any logistical problems (a common one being that the bundle provided for the witnesses has not found its way into the witness box). If witnesses are to give evidence, it will also allow time to take their details and give them to court staff – who need to know, in particular, whether the witness will swear on the Bible or other Holy Book, or affirm.
15.24Both in relation to witnesses of fact and expert witnesses, making sure that they are familiar with the layout of the court room is important: wherever possible they should be taken in and shown where they are to sit, where the witness box is and where the judge will sit. It is important to understand that for most witnesses, even social or health care professionals, a court room is an alien and often forbidding environment; much can be done by way of simple familiarisation with that environment. It is also important – and is not (impermissible ‘coaching’) – to explain to a witness the process of being questioned: one particularly useful tip being to address the answers to any question being asked in cross-examination to the judge so as to avoid the natural tendency to feel that cross-examination represents a personal attack upon the witness by the person conducing the questioning.
Public or private?
15.25As discussed in greater detail in chapter 13, final hearings will take place in the majority of cases in public.
Opening speeches
15.26Especially where full skeleton arguments have been provided, it is unlikely that the judge will want to hear lengthy opening speeches from any of the legal representatives; the usual practice is to proceed very rapidly (often within a matter of minutes) to the calling of the first witness for the applicant.
Witness evidence
15.27Proceedings before the Court of Protection are formal proceedings, such that witnesses will be required to swear on the Bible or other Holy Book, or affirm as to the truth of their evidence.
15.28As discussed at para 12.15 above, a witness statement will stand as the evidence-in-chief of a witness, such that they will only be permitted to give supplementary evidence in answer to questions from the party on whose behalf they appear with the permission of the court. How readily this will be granted will depend upon the nature of the case; it can, though, be the case that a witness will have done no more than confirm their name and address and that the contents of their statement are true before they are answering questions put by the other parties. This can be disconcerting for the witness, and, where it can properly be done, it is usually advisable for the legal representative for the party calling the witness to ask at least one ‘settling in’ question. What this question will be will depend upon the context, but most usually it will consist of inviting the witness to update the court as to any developments since the witness statement was prepared.
15.29A witness called on behalf of a party will then be cross-examined by the other parties, and can then be re-examined by the party on whose behalf they have given evidence. They can also be asked questions by the judge: especially given the inquisitorial nature of the Court of Protection’s processes, it is quite frequently the case that many of the questions that are put to the witness in the court are, in fact, asked by the judge. The judge should then give the chance to the parties to ask any further questions of the witness arising out of their questions.
15.30The usual practice is for all the witnesses of fact to give their evidence, first those called on behalf of the applicant, then those called on behalf of the first respondent, and so forth, before any expert witness gives their evidence. Ideally, an expert witness such as an independent social worker will have had the chance to hear the evidence of the witnesses of fact so that they are able to consider this evidence when giving their opinion to the court; if the hearing is lengthy, however, it may well be too expensive and/or logistically impracticable for the expert to attend all the days of the hearing. In such a case, then the party calling the expert (which will, if the Official Solicitor has been instructed on behalf of P, almost invariably be the Official Solicitor) should make sure that they give a summary to the expert of any relevant evidence given in their absence.
15.31Space precludes a detailed discussion of the principles of witness handling, the principles of which are the same before the Court of Protection as they are before any other court or tribunal.
1And are pithily summarised by Parker J in NCC v PB and TB [2014] EWCOP 14, [2015] COPLR 118 at paras 140–146. In very brief summary,
preparation and
politeness are the two watchwords that will perhaps most usefully serve. What the judge wants is to have brought out before them the evidence upon which they can:
a)determine any facts in issue; and
b)determine whether
•P has or lacks the requisite decision-making capacity; and
•(if P lacks capacity), where P’s best interests lie.
It is only by being clear as to what submissions will be made in closing arguments as to the evidence going to a) and b) that proper lines of questioning can be developed. Further, while it can frequently be necessary to be robust in cross-examination, and it is important that particular points of contention are put to the witnesses so that they can properly respond, judges respond very negatively to discourtesy in questioning. This is particularly so when it comes to the cross-examination of independent experts, whose duty it is to assist the court rather than one of the parties (see paras 12.81 onwards). Moreover, experience teaches that it is generally extremely unlikely that ‘badgering’ an expert under cross-examination will lead them to recant their opinions. It is generally far more productive for an advocate to treat the expert as a fellow professional and, in essence, to engage with them upon their own terms so as to tease out the nuances in their views. What is often effective is to examine with the experts the factual premises upon which they have based their opinions, because a good expert will always reassess their opinion if they are given new or different factual information upon which to base that information. As discussed at para 12.60 above, an expert should not be determining the factual matters in issue in the case, so where there are still factual matters that are not determined, it is entirely appropriate to invite an expert to give their opinion on the basis that ‘if the court were to find that [xx] took place, how would your opinion differ?’.
15.32One point cannot be emphasised enough. As obvious as it seems, it is vital to recall that the focus of the hearing will be upon P’s capacity and best interests, a matter in respect of which there are no winners or losers. The court will therefore be very impatient with questions that are directed to the canvassing of allegations of misconduct or poor practice save and to the extent necessary for the court to be able to determine where the interests of P lie (see also para 14.9). This can place advocates in particular difficulties where they are being pressured by their lay clients to put questions to others because they want grievances aired. Those grievances – for instance as to how another family member or a local authority social worker has conducted themselves – may well be very deeply felt, but unless they relate to the issues actually before the court they should not be advanced by way of questioning. In this regard, it is useful to recall the strong guidance given by the Court of Appeal that:
Something of a myth about the meaning of the client’s ‘instructions’ has developed…. the client does not conduct the case. The advocate is not the client’s mouthpiece, obliged to conduct the case in accordance with whatever the client, or when the advocate is a barrister, the solicitor ‘instructs’ him. In short, the advocate is bound to advance [his client’s] case on the basis that what his client tells him is the truth, but save for well-established principles [relating specifically to criminal cases] the advocate, and the advocate alone remains responsible for the forensic decisions and strategy. That is the foundation for the right to appear as an advocate, with the privileges and responsibilities of advocates and as an advocate, burdened with twin responsibilities, both to the client and to the court.
2Farooqi and others v R [2013] EWCA Crim 1649 at para 108.This guidance was given in the context of criminal proceedings, but it is equally applicable to proceedings before the Court of Protection.
3Re PB [2014] EWCOP 14, [2015] COPLR 118 at paras 140–146.15.33Finally, it should be noted that it is very important to keep a proper note of the evidence given by witnesses; while proceedings before the Court of Protection are recorded, such recordings a) can sometimes contain gaps at the vital moments; b) can take some time to transcribe; and c) will usually only be transcribed upon payment of a fee by the party requesting the transcription.
Witnesses: special cases (1) hearing from P
15.34As discussed in chapter 4, there is an increasing trend for judges to hear from P, and judges are now required specifically to consider whether they should do so as part of determining how P is to participate in the proceedings (see para 11.4).
15.35In light of what is now a considerable body of case-law from the European Court of Human Rights (ECtHR) outlining what some have called the ‘rule of personal presence,’
4Summarised most recently in AN v Lithuania [2016] ECHR 462. See also Lucy Series, ‘The participation of the relevant person in proceedings in the Court of Protection: A briefing paper on international human rights requirements,’ available at http://sites.cardiff.ac.uk/wccop; a further, more detailed discussion paper, drawing on work funded by the Nuffield Foundation, is anticipated as at the date of writing. there is in the authors’ view, a strong argument that the presumption should be that the judge determining any case in which either P’s capacity or best interests is in issue should take steps to ensure that they have had personal contact with P.
5This argument is reinforced by considerations arising out of the Convention on the Rights of Persons with Disabilities: see chapter 25.15.36‘Personal contact,’ however, can take various forms, not all of which will necessarily involve P participating as a witness, ie giving information to the court in a formal fashion in the presence of the parties and being questioned by the parties. The use of the word ‘information’ here is deliberate: P may well not be competent to give evidence (see further para 12.25), but following the introduction in July 2015 of COPR r95(e), the court ‘can admit, accept and act upon such information, whether oral or written, from P […] as the court considers sufficient, although not given on oath and whether or not it would be admissible in a court of law apart from this rule’.
6See also A County Council v AB and others (Participation of P in Proceedings) [2016] EWCOP 41.15.37Even if P does give information in open court, it would be an unusual case in which P was cross-examined in a conventional fashion by the representative of a party (and, we suggest, an extremely unusual case in which the court would allow such questioning by an unrepresented party). The main circumstances where we suggest that such might be permissible – and possibly even in some circumstances required – is where P is giving information as to factual matters which have to be determined before the court can make determinations as to best interests, most obviously where the court has to resolve factual allegations against one or more parties. In some (rare) cases, most obviously where the allegation is one that essentially relates to P’s word against that of another, P may well have to be cross-examined. In such a case, however, we suggest that the court will proceed with extreme care and will follow the guidance we discuss in relation to vulnerable witnesses below in controlling the questioning process.
15.38The courts have not yet authoritatively determined exactly what is happening where P is giving information to a court which is determining their capacity. However, in
CC v KK and STCC, Baker J proceeded on the basis that KK was able to give evidence as to her own capacity which he both and should weigh up alongside all the other evidence (including that from the experts instructed). This was in some ways an unusual case because KK had been found to have capacity to conduct the proceedings, and it is also clear that KK was cross-examined as to her evidence as to (or possibly, strictly, her assertion of) her own capacity.
7See para 49.15.39Nor have the courts authoritatively determined whether P can give evidence (or information) going to their best interests. The determination of P’s best interests is not the determination of a fact, but an evaluative exercise.
8See Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 33, [2013] 1 WLR 1911, (2013) 16 CCLR 554 at para 42. As the identification of and giving suitable respect to P’s wishes and feelings assumes greater importance in decision-making under the MCA 2005 (see further chapter 3), it is clear that the courts are becoming increasingly alive to the need to hear those wishes and feelings, wherever possible, directly from P. Strictly, the court is in doing so probably not taking information or evidence in any conventional sense, but rather discharging its obligation under MCA 2005 s4(4) to ‘permit and encourage [P] to participate … as fully as possible in any act done for him or any decision affecting him.’
9See Wye Valley NHS Trust v B Court of Protection [2015] EWCOP 60, [2015] COPLR 843, (2015) 18 CCLR 733 at para 18.15.40However it is characterised, the judge seeing P will in the right circumstances give a very valuable picture which may be very different to that presented at second hand on the papers by others.
10See in this regard A Hospital NHS Trust v CD and Another [2015] EWCOP 74, [2016] COPLR 1 at para 31. It cannot be emphasised enough that this must be in the right circumstances: it may well be entirely inappropriate, if not actively counter-productive and damaging, to bring P from their home or care placement to court.
11See the comments in Re M [2013] EWHC 3456 (COP) at para 42. Rather, it may well be necessary for the judge to visit P – including, for instance, at P’s bedside – and in the presence of only a limited number of representatives so as to minimise any pressure upon P.
15.41Wherever a judge is seeing P other than in the presence of the parties, a proper record should be kept of any discussion, usually by the representative of the Official Solicitor if instructed on P’s behalf. It is also important that P is assisted insofar as possible to understand both nothing that P says to the judge can be kept confidential as between P and the judge, and also that the judge will have to reach their decision on the relevant issues on the basis of everything that they have heard, not just the information that P has given them.
15.42A further reason for the judge to see P has nothing, strictly, to do with the gathering of evidence, but is simply to allow P to feel ‘connected’ to the proceedings.
12Re M [2013] EWHC 3456 (COP) at para 42. There is also a risk that this can come across as both patronising and demeaning, but it can be extremely important to allow P to understand who it is who is taking often very significant decisions in their life. Many, even with relatively severe levels of cognitive impairment, have a concept of a ‘judge,’ and to see the judge who will be deciding the case can be extremely important for them.
15.43Wherever it is suggested that the judge should see P, consideration will always need to be given to the practicalities. For instance, it may well not be appropriate for P to be brought into the well of a large and intimidating court room, but the judge might well be able to see P in a smaller conference room. It may well also be a good idea, if such is practicable, for P to be brought to the court before the day of hearing so that they are familiar with the journey and reassurance can be given as to the practical arrangements: a small but important example being whether tea is available: the calming power of a cup of tea can never be overestimated. If the judge is to visit P in their care home, then suitable arrangements will need to be made for somewhere private to be made available for the relevant meeting to take place. Guidance is expected at the time of writing amplifying these points, and will be found at www.courtofprotectionhandbook.com.
15.44See further the end of this chapter for practical examples of steps taken in a case to maximise P’s participation in the proceedings.
13See also the guidance issued by Charles J in ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’ available at courtofprotectionhandbook.com/legislation-codes-of-practice-forms-and-guidance.Witnesses: special cases (2) vulnerable witnesses
15.45Although it is likely to be rare that the court will need to hear from a witness who themselves is vulnerable (by reason of age, disability or otherwise), the possibility cannot be ruled out. There are no specific provisions in the COPR to cater for the putting in place of special measures to cater for vulnerable witnesses; however, there are a suite of such measures that are regularly deployed in family proceedings that can be pressed into service by the court.
14Using, in particular, COPR rr3 and 95(a)(iii). Some of these steps include:
15For more detail, see Alex Ruck Keene, Penny Cooper and Claire Hogg, ‘Special measures in the Court of Protection’ [2016] Eld LJ 62.•Using a live video-link so that the witness can give evidence remotely, most usually so that they can give evidence other than in the presence of a person who may be subjecting them to intimidation;
•Pre-recording evidence, whether evidence in chief, or (in special cases) cross-examination;
16See in the criminal context, Youth Justice and Criminal Evidence Act 1999 s27. and
•Using an intermediary, whose function is to communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.
17Youth Justice and Criminal Evidence Act 1999 s29(2). Although originally a development in the criminal sphere, intermediaries are seeing increasing use in the family as well as criminal courts, where they have received praise for their effectiveness in facilitating communication. In
Newcastle City Council v WM and Others,
18[2015] EWFC 42. Mr Justice Cobb described the two intermediaries as ‘excellent’, and as having performed their role ‘with great skill and discretion’. He found himself to be ‘indebted’ to the intermediary service for enabling the mother, who suffered from learning disabilities and spoke English as a second language, ‘to participate in the process as fully and effectively as could possibly be achieved’.
19At paras 5–6. 15.46Perhaps the most crucial step is recognising that both the court and the advocates must adjust their approach to questioning so as to ensure that the witness is enabled to give their best, most accurate and most coherent account. This can be facilitated by:
•The use of Ground Rules Hearings, which are established practice in the criminal sphere, and at which specific, advance, consideration can be given to the approach to take to questioning so as to ensure both fair treatment and proper participation.
20R v Lubemba (Cokesix) [2014] EWCA Crim 2064, [2015] 1 WLR 1579. In a welfare case falling under the Case Management Pilot (see further chapter 4), we would suggest that the final management hearing should also, where appropriate, include the relevant ground rules determination (although we also suggest that adapting to the particular needs of relevant witnesses and – especially – P is something that starts much earlier in the process, from the first case management hearing);
•Prior vetting of the planned examination or cross examination. Where examination is necessary, advocates may submit their proposed questions in advance to an individual (often an intermediary) who is well placed to advise on vocabulary, order of questioning and general approach in light of the needs and limitations of the vulnerable witness.
•A collaborative rather than adversarial approach to questioning.
15.47A particularly useful recourse in this regard is the Advocate’s Gateway, a free resource designed to assist in the questioning of vulnerable witnesses, including specific resources to assist in (for instance) the questioning of those with learning disability.
21See: www.theadvocatesgateway.org/.Witnesses: special cases (3) interpreters
15.48Her Majesty’s Courts and Tribunals Service (HMCTS) will meet the reasonable costs of interpreters for deaf and hearing-impaired litigants for hearings in civil proceedings, including those before the Court of Protection.
22See: www.justice.gov.uk/newsite/courts/interpreter-guidance. If an interpreter is needed, the court will make arrangements for an interpreter to attend. Many people have a friend or relative who usually interpret for them. Permission will be required from the judge before such a friend or relative can translate, and the judge must be satisfied that the friend or relative can interpret exactly what is being said to the court and what the court is saying to the individual in question.
15.49Unless the relative or friend has a recognised qualification in relaying information between deaf and hearing people, it may be better to use a qualified interpreter. The friend or relative may still be able to attend and provide support, but permission should be sought from the judge first.
15.50Language interpreters will be arranged at public expense in certain limited circumstances:
•proceedings for committal for contempt of court (see further chapter 17), where the subject of the application cannot understand or speak the language used in court;
•where it is the only way in which a litigant can take part in proceedings, ie where the person:
•cannot speak or understand the language of the court well enough to take part in the hearing;
•cannot get public funding;
•cannot afford to fund an interpreter privately; and
•has no family member, or friend, who can attend to interpret for them and who is acceptable to the court.
•Where a party is exercising the right given by the Welsh Language Act 1993 to any party to speak Welsh in legal proceedings in Wales.
15.51It is vital to give as much notice as possible wherever an interpreter will have to be arranged by the Courts Service, especially where the services are required for interpretation to and from an unusual language.
15.52It will also be necessary to factor in extra time for the giving of evidence whenever the services of an interpreter is required – a rough rule of thumb is that it is sensible to double the time-estimate for any given witness because of the inevitable impact upon the speed at which questions can be put and answered.
Witnesses: special cases (4) ‘remote’ evidence giving
15.53COPR r98 provides that the court can allow a witness to give evidence through a video-link or other communication technology.
15.54Increasing numbers of court centres are now equipped to receive evidence from witnesses by video, and it is now a relatively routine procedure. A video-link can be an important special measure taken to secure the giving of evidence by a vulnerable witness. However, in general:
It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. Consideration should be given in each case as to whether its use is likely to be beneficial to the efficient, fair and economic disposal of the proceedings.
23PD 14A annex 2 para 2. In Re Jones [2014] EWCOP 59, the daughter of P gave evidence by video from Canada as she was unable to travel to London for the hearing.15.55It is necessary to make an application for a video-link to be used in good time, not least as most court centres will only have a limited number of court rooms in which it is possible to use the necessary equipment. The application must be made on a COP9
24See further paras 10.20 onwards. form by the party wishing to call the relevant witness by video. Detailed guidance as to the process that should be followed is set out in annex 2 to PD 14A. This annex also sets out in some detail the practical considerations that arise when taking evidence by video, in particular given the ‘lag’ that can arise between receipt of the picture and accompanying sound, and also as to how to ensure that the person giving evidence has access to the same documents as those in the courtroom with the judge.
15.56In urgent medical treatment cases (see further chapter 22), it is not uncommon for evidence to be given by the treating clinicians by telephone; the courts discourage the use of telephone evidence in final hearings in other cases, and it would be very unusual indeed for it to be acceptable for a witness giving evidence as to contested facts to give telephone evidence because of the difficulties to which this gives rise in terms of assessing their credibility absent the ability to see their face and body language. If it is proposed that evidence should be taken from a witness by telephone in anything other than the most urgent hearing, a detailed application for permission should be submitted on a COP9 form in good time. Wherever telephone evidence is taken, particular care must be taken to ensure that the loudspeaker on the telephone in the court room is set to a sufficiently loud volume to be able to be picked up by the tape transcription of the proceedings.
15.57Finally, it should be noted that the courts have been prepared, in cases involving children, to accept evidence by Skype, but only with a considerable degree of caution:
The technology can be very effective for informal use, but does not lend itself to the court environment. There are problems in everyone seeing and hearing the picture and in the evidence being recorded. There are also issues about security. I would not be willing to use this method if there was any alternative.
25Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam), per Peter Jackson J at para 13.It is possible, however, for a specialist service to be employed to provide a bridge between the witness using Skype and the ISDN system in place at court. This technology mediates between the systems and provides some protection against hacking. The Skype user is provided with a download allowing them to connect to the court’s system. In addition to the program, the witness requires a PC, an internet connection, a webcam, a microphone and a mobile or landline number with which to contact the company for instructions. Again, if there is a suggestion that Skype should be used, this is something that should be raised as early as possible and by way of a detailed COP9 application. It is something in respect of directions will undoubtedly be need to be sought at the final management hearing under the Case Management Pilot (see further para 10.20).
Closing arguments
15.58The normal practice is that the applicant will make their closing submissions first, followed by the respondent(s), and then the applicant will have the last word by way of a reply. Where P is a party, the court will usually wish to hear from the Official Solicitor (if he is acting as P’s litigation friend) after all of the other respondents. As noted at para 12.21 above, the Official Solicitor will usually have filed a statement in advance of the final hearing setting out a summary of the relevant background to and the procedural developments in the proceedings, and setting out the Official Solicitor’s views as to P’s best interests in the light of the evidence as it stands as at the time of the statement. Such views are usually expressed as being subject to the caveat that they will be the subject of further consideration at the conclusion of the hearing, to cater for unanticipated developments at the hearing. The court will therefore be particularly astute to glean from the Official Solicitor what his final position is as to P’s best interests in light of all the evidence heard. It is suggested, again, that broadly the same procedure should be followed if a litigation friend other than the Official Solicitor has been appointed to act on P’s behalf.
Negotiations during the hearing
15.59It is very common for the positions of parties to shift during the course of a final hearing, especially if it lasts any length of time. This is particularly so if the evidence given by a witness (or witnesses) is either particularly compelling or is demonstrated to be particularly weak by way of cross-examination. It is important always to keep in mind that there is no reason why agreement in such circumstances cannot be reached upon part (or even the whole) of the application. While judges are reluctant to risk letting a case overrun by granting too many adjournments, it is usually the case that a judge will be happy to retire to allow discussions to take place during the time set aside for the final hearing if they can be satisfied that constructive progress is being made.