A v Independent News and Media Limited [2010] EWCA Civ 343

This case involved consideration by the Court of Appeal of the Court of Protection Rules as to whether hearings should be held in private or in public, it involved proceedings issued in respect of a severely disabled adult, A, who was blind and had severe learning disabilities had attained public and international recognition as a musical prodigy. His parents and sister had initiated proceedings under the Mental Capacity Act 2005 for a declaration from the Court of Protection that they should be jointly appointed as his deputies, to take decisions on his behalf in relation to his personal welfare and his property and other affairs. The defendant’s applied for permission to attend that hearing in order that they could then apply for such information as they thought appropriate to be made public, arguing that much of A’s personal life was already in the public domain. This was initially granted by the High Court and the Official Solicitor appealed on A’s behalf contending that the proceedings should be heard in private, in accordance with the general rule.

The Court of Appeal upheld the decision of the High Court, they reviewed the earlier judgment and particularly the exercise undertaken by the Judge when determining, first, if the defendants’ article 10 ECHR rights were engaged and, secondly, if they were engaged the balancing exercise with A’s right to privacy protected under article 8 of the ECHR. The Judge at first instance had concluded that, because the Court of Protection Rules required matters to be heard in private the principles of open justice did not apply. The Court of Protection Rules did permit for matters to be heard (or part heard) in public but only where there was ‘good reason’ for this. As such the High Court had determined that article 10 was not engaged by the mere initiation of Court of Protection proceedings. That is not to say that the media did not have rights, they could make an application under the Court Rules for matters to be heard in public and once such an application was made and they had established a ‘good reason’ then the rights to freedom of expression protected under article 10 must be considered by the Court and balanced against the individual’s article 8 rights.
The Court of Appeal approved of this approach in the main, but nnoted that in this instance because the media were seeking information about what happens at Court, the applicant was not a private person and they were seeking permission to disclose information that was already in the public domain, the case for engaging article 10 was stronger and did arise at the point when the application was made. The Court of Appeal commented that it would not be appropriate to accede to the Official Solicitor’s suggestion that instead of allowing access by the media, parts of the Court of Protection’s judgment could be published, since it would be wrong for a judge to tailor his judgment to the needs or concerns of the media. Instead they favoured the attendance by members of the media who would be able to draw to the attention of the Court matters of legitimate public interest as possible matters for publication so that the judge would be free to concentrate on the main purpose of the litigation, namely the involvement of his family in determining A’s best interest.

Further, the Court of Appeal considered that it was valuable for the public to know about what happens in the Court of Protection, where most hearings will be held in private, and that it was difficult to think of a more appropriate case to fulfil that function, in view of the public’s existing familiarity with A’s story.

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