In the Matter of DP [2014] EWHC 7 (COP)

Sir James Munby issued Practice Guidance in January 2014 (Transparency in the Court of Protection: Publication of Judgments [2014] COPLR 78) that indicated lays down rules for the following cases: “any case where the issues include whether a person should be restrained from acting as an attorney … or that an appointment should be revoked” and the general rule : “permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published” (paragraph 17(iv)).

 

In February 2014 the Senior Judge Lush gave a judgment explaining why he was revoking a lasting power of attorney executed by DP.

 

This lasting power of attorney appointed a man referred to in the judgment as “JM” to be DP’s sole attorney (Re DP sub nom Public Guardian v JM [2014] EWCOP 7).  As the Senior Judge observed, his judgment fell within paragraph 17(iv) of the Practice Guidance.  The Senior Judge concluded that JM was in breach of his fiduciary duties as an attorney.  Judge Lush drew specific attention to the fact that JM had sold DP’s house and placed the net proceeds of sale in an account in his own name, that JM had attempted (unsuccessfully) to transfer DP’s investment bond into an account in his own name, that JM had made a gift to himself of £38,000 from DP’s monies, that JM was unable to account for drawings totalling £10,020 from DP’s monies, and that JM had paid himself a ‘salary’ totalling £8,340.  Judge Lush did not name JM in his judgment and did not give reasons why he had not been named.

 

In March 2014 the Daily Mail published a story about the case and expressed strong criticism of the fact that JM had not been named in the judgement.  The following day an equally prominent story was published stating that JM was a thief who had escaped punishment because of a failure of the criminal justice system.  In April 2014 Associated Newspapers Limited “ANL” (the publishers of the Daily Mail) applied to the court for an order permitting the identification of JM in reports of the case.  The application was listed before Sir James Munby and the decision he made was that JM might indeed be identified in reports of the case.

 

JM complained that ANL was wrongly and unfairly calling him a thief and they were trying to go behind both the decision of the CPS not to prosecute, and the terms of Senior Judge Lush’s judgment. He argued that he was being used as a scapegoat by ANL who were using his case to make a political point in order to get the law changed.  Sir James Munby (repeating what he had said in Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam)) stated that he was not concerned with this argument and if JM was being defamed or treated unfairly by ANL then he had remedies elsewhere and these were not matters for the Court of Protection.

 

ANL argued that the impact on DP if JM’s identity was revealed would be minimal and that the impact of additional unwelcome publicity on JM must be balanced against (and was heavily outweighed by) the public interest in reporting court proceedings and identifying individuals found by a court to have committed serious wrongdoing.   In addition, ANL argued that there was also a public interest in identifying JM so as to avoid any perception that the court was in some way protecting him.

 

Agreeing that JM should not be spared the consequences of his misbehaviour, and that any impact on DP was likely to be minimal, the court found that the balance came down heavily and decisively in favour of the public being told who JM is; and in favour of ANL and others being free to identify him as the person referred to by Senior Judge Lush.

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