P (Application to Withhold Closed Material: Concurrent Civil Proceedings), Re [2024] EWCOP 2621/5/2024
Application by the Official Solicitor, who represents the protected party, to withhold material - closed material - from the Protected Party's parents. P is an adult with an acquired brain injury following a road traffic accident and which is subject to a personal injury claim. He is not engaging with legal representation in either the PI or COP proceedings but the OS has been appointed as his litigation friend. In the PI claims there were concerns that P's parents were not acting in his best interests. Against this background the OS applied to withhold specified material - a COP9 and a skeleton argument in support - from P's parents.
Henke J first confirms P lacks capacity and then considers the issue of closed material and the respective impact on P's and P's parents' human rights. She reminds herself that "the starting point of my analysis must be that "all parties (and, if not joined as a party, P) to proceedings before the Court of Protection should be able to participate in all hearings, and have sight of all materials upon which the court will reach its conclusions". While acknowledging non-disclosure would interfere with the parents' Article 6 and 8 rights, she then concludes at [83-84] "Open justice is an important aspect of accountability in a democratic society. It has a high value which I respect and factor into my decision making. Part of open justice is that all parties to proceedings have the same case papers at the same time. The proceedings before me are adversarial in nature and for one party to be deprived of material available to other parties means that they will not be litigating on an even playing field. However, there are rare cases where that inequality is justified in the interests of justice. I find that this is one such rare case. Having read the closed material, there is a real possibility that disclosing that relevant information to P's parents at this stage would place P at risk of significant harm - physical, emotional, and psychological – in breach of his Article 8 rights." Read the judgment on Bailii Comments are closed.
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