The powers of the Court of ProtectionInjunction:power to grantEnforcement:powers of Court of ProtectionEnforcement:powers drawn from High CourtEnforcement:injunctionEnforcement:contempt of courtEnforcementEnforcement:powers of Court of ProtectionEnforcement:powers drawn from High CourtEnforcementEnforcement of judgments and orders:specific powers contained in COP RulesEnforcement of judgments and orders:COP RulesEnforcement of judgments and ordersEnforcement:powers of Court of ProtectionEnforcementEnforcement of judgments and orders:specific powers contained in COP RulesEnforcement of judgments and orders:COP RulesEnforcement of judgments and ordersEnforcement:powers of Court of ProtectionEnforcementEnforcement of judgments and orders:specific powers contained in COP RulesEnforcement of judgments and orders:COP RulesEnforcement of judgments and ordersEnforcement:powers of Court of ProtectionEnforcementEnforcement of judgments and orders:specific powers contained in COP RulesEnforcement of judgments and orders:COP RulesEnforcement of judgments and ordersEnforcement:powers of Court of ProtectionEnforcementEnforcement of judgments and orders:specific powers contained in COP RulesEnforcement of judgments and orders:COP RulesEnforcement of judgments and ordersEnforcement:powers of Court of ProtectionEnforcement
Powers drawn from those of the High Court
17.5Before turning to the detail of the enforcement mechanisms set out in COPR Part 21, it is necessary first to discuss the more general powers of the Court of Protection. The Court of Protection is a superior court of record,
1MCA 2005 s45(1). which has ‘in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court’.
2MCA 2005 s47(1). See also MASM v MMAM and others [2015] EWCOP 3, [2015] COPLR, (2015) 18 CCLR 80 239 at para 13. This has the following consequences:
•A judge sitting in the Court of Protection can grant an injunction so as to give effect to their decision and to secure the best interests of the adult. Senior Courts Act 1981 s37 provides that ‘the High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so’. The Court of Protection is, by MCA 2005 s47(1), given these same powers.
3W v M and S (reporting restriction order) [2011] EWHC 1197 (COP), [2011] COPLR Con Vol 1205 at para 21. Such an injunction will either require a person to do a specified act or (more usually) not to do a specified act or acts. Its terms must be clear and unambiguous in order for it to be effective,
4Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87; R v City of London Magistrates’ Court, ex p Green [1997] 3 All ER 551. See also the commentary in Halsbury’s Laws Volume 22 (5th edn, 2012), at para 75, and Re Whiting [2013] EWHC B27 (Fam), [2014] COPLR 107 at para 12. and the person to whom it is addressed must have proper notice of its terms.
5R v City of London Magistrates’ Court ex p Green [1997] 3 All ER 551. See also the commentary in Halsbury’s Laws, Volume 22, 5th edn, LexisNexis, 2012, at para 75. •That the High Court would use its powers to grant an injunction so as to secure the interests of an adult without capacity (at least pending the final resolution of the application) had been established prior to the coming into force of the MCA 2005.
6See, for example, Re S (hospital patient: court’s jurisdiction) [1996] Fam 1, [1995] 1 FLR 1075 and the commentary in Ashton et al Court of Protection Practice 2016, Jordans, at para 1.40. The power to grant an interim injunction has now been codified in the Court of Protection Rules 2007,
7COPR r82(1)(a). See further paras 10.58 onwards above. and is regularly exercised so as to ‘hold the ring’ pending the determination of an application.
•It is also possible to grant an injunction that will continue in force after the end of proceedings. In
W v M, a high-profile case regarding the withdrawal of treatment from M, a person in a minimally conscious state, injunctions were made in support of reporting restrictions that prevented contact being made with the lay people at the heart of the case; those injunctions were expressed so as to last for M’s lifetime.
8W v M at para 70. It may be possible for reporting restrictions to continue after P’s death: Newcastle upon Tyne Hospitals Foundation Trust v LM [2014] EWCOP 454 and V v Associated Newspapers Ltd and others [2016] EWCOP 21. An analogy can also be drawn with the circumstances of
Re SA (vulnerable adult with capacity: marriage),
9[2005] EWHC 2942 (Fam), [2006] 1 FLR 867. a case decided under the inherent jurisdiction of the High Court. In this case,
10Which pre-dated the MCA 2005 and concerned an adult with capacity, but who was vulnerable to coercion. Munby J (as he then was) made final orders prohibiting the family members of a vulnerable adult from either themselves or by others removing her from the jurisdiction and/or arranging for her marriage save in very clearly defined circumstances. A time-limited power of arrest was attached to one provision (relating to the use of violence), but the remainder of the injunctions were expressed to run on an indefinite basis.
11Paras 136–137. •An order made by a Court of Protection judge (of no matter what level) has the same status as that made by a High Court judge.
•A breach of an order made by a Court of Protection judge, whether for purposes of case management or for purposes of giving effect to a judgment, can amount to a contempt of court and the court has the power to punish such contempt.
12See, for a discussion of the relevant powers of the High Court, Halsbury’s Laws, Volume 22 (5th edn, 2012), at paras 66ff, and the commentary in the White Book 2016 at section 3C. There are detailed provisions in COPR Part 21 relating to the procedural steps for applications for committal to prison for contempt of court, addressed further at paras 17.12 onwards below. It is suggested that the underlying power to commit a person to prison (or to fine them) does not derive from the COPR, but rather, from MCA 2005 s47(1) and, in turn, the inherent, common law power of the High Court both to control its own processes
13See Days Healthcare UK Ltd (formerly known as Days Medical AIDS Ltd) v Pihsiang Machinery Manufacturing Co Ltd [2006] EWHC 1444, [2007] CP Rep 1 at paras 20–23 per Langley J. and to enforce compliance with its decisions.
14See Griffin v Griffin [2000] 2 FLR 44, CA at para 21 per Hale LJ. 17.6The range of orders that the court can make under its general powers so as to compel compliance with its decisions is extensive. By way of example, in
Re HM,
15Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057. Although HM lacked the material decision-making capacity, this case was decided under the inherent jurisdiction of the High Court essentially as an accident of history. It is clear that similar relief can be granted by the Court of Protection, and the authors are aware of unreported cases in which such has been done. a case involving the abduction of an adult with impaired capacity, PM, from the jurisdiction to Israel, orders were made including:
•injunctive orders directed to PM, HM’s father, including a collection order;
•orders inviting the assistance of both domestic and foreign public (including judicial) authorities;
•orders seeking information from various individuals, friends or associates of HM (including summonses to court to give evidence), from various banks, insurers and travel agents, from an airline, various telephone and email service providers and the DVLA, and from others thought to be holding monies for PM;
•freezing orders, some directed to specific individuals in relation to specific assets held by them, the other a general freezing order in respect of all of HM’s assets which had been renewed from time to time;
•orders permitting frozen funds to be used to fund living expenses and to fund not merely PM’s legal costs in this country and in Israel but also the living costs of HM and her mother (KH), costs both in England and Israel and the costs of HM’s guardian in Israel, together with directing a third party to transfer monies from an account in his name to an account in the name of the Official Solicitor’s solicitors, directing the relevant bank to honour those instructions whatever contrary instructions they might have from PM, and subsequently directing the solicitors as to the utilisation of funds in that account; and
•orders designed to prevent PM knowing what was going on, though at the same time permitting appropriate disclosure to others.
Specific powers contained in the COPR
17.7The COPR
16See also MCA 2005 s51(2)(j), providing specific authority for rules to be made for the enforcement of orders made and directions given in proceedings. contains specific provisions relating to the enforcement powers of the Court of Protection. In particular:
•The court is given a specific power to direct that a penal notice be attached to any order. Such a notice makes clear that any person upon whom a copy of the order is served that disobedience would be a contempt of court punishable by imprisonment or a fine.
17COPR r192(1). It should be made in the following terms: ‘You must obey this order. If you do not, you may be sent to prison for contempt of court.’
18COPR r192(3). In practice, such penal notices – which are not infrequently used in welfare cases – usually also specify the precise paragraphs of the order which contain the particular act(s) that the person in question must do or not do.
•If the court does not make a penal notice direction, then a penal notice may not be attached to the order.
19COPR r192(2). It should be noted, however, that this does not mean that – in a suitable case – the court cannot consider whether disobedience of the order represents a contempt of court: this flows both from the provisions of the COPR themselves
20In particular COPR r194. and also from the wide powers granted to the court by MCA 2005 s47.
17.8Further, COPR r184 imports into the COPR the material provisions of the Civil Procedure Rules (CPR). These provide a suite of tools which are, in practice, relatively infrequently used by the Court of Protection. They enable the party entitled to enforce a judgment or order (‘the judgment creditor’) to enforce such a judgment or order against another party (‘the judgment debtor’). As the use of the terms ‘creditor’ and ‘debtor’ suggest, these tools are primarily directed to the enforcement of judgments or orders in relation to property and affairs. They are applicable also to enforce undertakings given to the court.
17.9In summary, these tools (all of which are only applicable at the instigation of the judgment creditor, and in some cases only with the permission of the court) are as follows:
•The Court of Protection can transfer enforcement proceedings to the county court.
21COPR r184(a); CPR Part 70; CPR 70.3. •The court may make an order requiring the judgment debtor to provide specific information to court about such matters as their means.
22COPR r184(a); CPR Part 71. •The court may make an order requiring a third party to pay a judgment creditor a specified sum.
23COPR r184(a); CPR Part 72. •The court may make a charging order (which is the equivalent of a mortgage) in favour of the judgment creditor over land or other property owned by the judgment debtor.
24COPR r184(a); CPR Part 73. •The court may prevent certain steps being taken (by way of a stop order and stop notice) in relation to securities and funds held by the judgment debtor.
25COPR r184(a); CPR Part 73. •The court may issue a writ or warrant of control to enable the taking control and sale of the debtor’s goods.
26COPR r184(a); CPR Part 83. •The court may make other provision for enforcement by way of taking control of the debtor’s goods.
27COPR r184(a); CPR Part 84. 17.10CPR Part 89 (attachment of earnings), which was introduced with effect from 6 April 2016,
28By the Civil Procedure (Amendment) Rules 2016 SI No 234. was not incorporated into the COPR as the amendment to the CPR post-dated the 2015 rule changes. However, this makes little difference as the county court has sole jurisdiction to make an order under the Attachment of Earnings Act 1971, so a transfer to the county court would have been all but inevitable under CPR 70.3, incorporated by COPR r184(a).
17.11Space precludes a discussion of the procedural steps required to invoke enforcement proceedings, but the central steps are set out clearly in CPR Practice Direction (PD) 70 (Enforcement of judgments and orders). They are, in the authors’ experience, rarely invoked.