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Judge calls for financial discipline in the Court of Protection

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March 28, 2024

High Court Judge Mr Justice Peter Jackson has issued a joint judgement critical of “delay and expense” in Court of Protection hearings.

Re Cases A and B (Delay and Costs) concerned two separate cases involving young men who lack ‘capacity’ – the ability to make legal decisions about their own welfare, although each was were able to maintain semi-independent lifestyles. Both cases involved the participation of local authorities, the men and their families, with the Official Solicitor acting as ‘litigation friend’ (legal representative).

Both Court of Protection cases incurred substantial legal costs – in the first case of £140,000 and in the second case, of £530,000. A significant proportion of costs in the first case – £69,000 – were paid of funds belonging the man belonging to the man in question: a payment for damages he had previously received.

In the second case, which lasted for five years, some funding came from a relative of the man involved, and he also received a substantial £250,000 in legal aid.

Mr Justice Peter Jackson referred to the “extravagance” of the proceedings and said they had not “remotely achieved” the objectives outlined in the Court of Protection Rules 2007.

Rule 5 states that the Court has a duty to encourage parties to actively manage cases and encourage cooperation and the use of alternative dispute resolution wherever possible.

Neither case had complied with the requirements of Rule 5, the Judge declared.

“There were too many hearings before too many judges,1 too much documentation, and too many lengthy adjournments with excessive time estimates for hearings.”

Delays in the resolution of each case have led to “protracted stress” for each of the two men, declared the Judge, and the cases had also drained the “time and energy” of social workers and doctors. He said:

Just as the meter in a taxi keeps running even when not much is happening, so there is a direct correlation between delay and expense.”

The main responsibility for the delays lay with the Court itself, the Judge declared. He compared the introduction of more stringent case management procedures in cases involving children with those in the Court of Protection.

“As a result of…robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years.”

But such disciplines did not yet exist in the Court of Protection, he noted.

“The young man in Case B is said to have a mental age of 8. What would we now say if it took five years…to decide the future of an 8-year-old?”

Mr Justice Peter Jackson’s ruling was to be sent on to Sir James Munby, President both of the Family Division and Court of Protection, for his consideration “at his request”.

Read the full judgement here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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