Position statements in Court of Protection cases are court records but not presumptively disclosable: open justice requires demonstrated need and Article 8–sensitive safeguards

Introduction

Re: Gardner (Deceased) (Court of Protection: Disclosure of Position Statements), Re [2026] EWCA Civ 640 is a Court of Appeal (Civil Division) decision concerning whether position statements filed for hearings in the Court of Protection may be disclosed to a non-party observer.

The underlying proceedings arose under the Mental Capacity Act 2005 in relation to “P”, an adult who had sustained a catastrophic hypoxic brain injury and lacked capacity. The case concerned end-of-life decisions and the effect of an Advance Decision to Refuse Treatment (ADRT), contained within a “Living Will”, alongside associated documents containing highly sensitive allegations about family members.

Hearings were directed to be held in public but subject to a Transparency Order restricting publication of identifying information. A regular observer, Professor Kitzinger (founding co-director of the Open Justice Court of Protection Project), sought disclosure of parties’ position statements to better understand and report on the case (subject to the Transparency Order). The appellant (P’s mother) opposed disclosure.

On appeal (with the NHS parties not participating), the Court of Appeal allowed the appeal and set aside the disclosure order, emphasising that Court of Protection proceedings remain private by default and that document access must be tightly justified and controlled to protect Article 8 rights.

Summary of the Judgment

  • Proceedings remain private by default under COPR 2017 r.4.1, even where a hearing is directed to be held in public under r.4.3. A public hearing direction does not convert the case into “public proceedings” akin to civil litigation heard publicly by default.
  • Position statements become “court records” once lodged, and fall within COPR 2017 r.5.9(2) (drawing on Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629).
  • They are not automatically disclosable to observers/non-parties. Disclosure requires court authorisation under r.5.9(2).
  • Open justice does not entitle observers to all decision-informing material; access must be justified by a demonstrable link to advancing open justice, not curiosity, research, education, or personal interest.
  • Article 8 ECHR interference was serious because the position statements reproduced highly personal “source” evidence; the first-instance court failed to engage with r.5.9(4) (edited/redacted disclosure) and possible use restrictions.
  • The first-instance “guidance” on parties providing position statements directly to observers should not be followed; the Court of Protection Rules Committee should address the issue urgently.
  • Pending rules reform, courts should consider providing case summaries, chronologies, and lists of issues to assist observers, with any further document access decided by the judge via r.5.9.

Analysis

1) Precedents Cited (and how they shaped the outcome)

Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629

Dring supplied the modern framework for non-party access to court documents and the meaning of “court records”. The Court of Appeal adopted the proposition (from Baroness Hale) that once documents are lodged they form part of “documents and records which the court itself keeps for its own purposes”, supporting the conclusion that position statements fall within COPR 2017 r.5.9(2).

Crucially, the Court of Appeal applied Dring to emphasise:

  • Open justice is served by scrutiny and understanding of courts’ work, but access is not a general entitlement to all materials.
  • The applicant must explain why access is sought and how it will advance open justice (the judgment references Dring at [45]).
  • Even where open justice is engaged, disclosure should be limited to what is essential to meet that aim, especially where countervailing interests (including privacy and protection of “mentally disabled adults”) are weighty (Dring at [46]).

The Court also distinguished Dring factually: it was a personal injury claim where Article 8 was not engaged; in contrast, Court of Protection welfare cases intrinsically and intensely engage privacy rights and vulnerability concerns.

Moss v The Upper Tribunal [2024] EWCA Civ 1414

The first-instance judge had modelled a disclosure approach on Moss. The Court of Appeal held that was an error: Moss concerned proceedings in a jurisdiction operating publicly by default, and did not justify importing a generalised disclosure regime into the Court of Protection—especially where the Court of Protection has an explicit rules framework (COPR 2017 r.5.9) and the welfare/privacy dimension is structurally different.

The Court also noted that Moss had itself cautioned against issuing guidance of broader application, reinforcing the inappropriateness of transplanting it into Court of Protection practice.

V v Associated Newspapers Ltd & Ors [2016] EWCOP 21

This was the Court of Appeal’s key “warning from within the jurisdiction”. The Court relied on Charles J’s staged approach: even where there is “good reason” for a public hearing, that does not mean Court of Protection proceedings should then be treated like proceedings that are public by default. The first-instance court fell into the precise error identified in V v Associated Newspapers Ltd & Ors.

Hinduja v Hinduja [2022] EWCA Civ 1492

Hinduja was cited for the general proposition that appellate interference in case management is usually limited. But the Court of Appeal held that, notwithstanding the broad case management discretion, the first-instance decision here was procedurally unfair and substantively wrong given the COP privacy framework and the timing/context (end-of-life decisions and imminent death).

Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] 2 WLR 815

This authority was used to reinforce the proposition that the open justice principle does not apply in the same way to proceedings that are private by default. It supported the Court’s insistence that the starting point is COPR 2017 r.4.1, not a civil-courts “open by default” model.

Re HMP [2025] EWCA Civ 824; [2025] 1 WLR 5201

The Court used Re HMP alongside Dring for the dual purposes of open justice (scrutiny/accountability and public understanding), while stressing that these aims do not require wholesale access to all underlying documents.

W v P [2025] EWCOP 11

The Court cited W v P to underline a central distinction: the public interest is not the same as “what the public is interested in”. The judgment reinforced that Court of Protection privacy is an equality principle: those lacking capacity should, so far as possible, enjoy confidentiality comparable to those with capacity, unless good reason justifies departure.

Independent News Media v A [2010] 1 WLR 2262 and Scott v Scott [1913] AC 417

These authorities (via W v P) anchored the “longstanding common law exception” to open justice for vulnerable persons and private matters, now reflected in the Court of Protection rules structure.

Hayden v Associated Newspapers Limited [2022] EWHC 2693 (KB) and R (MPC) v PMP [2025] EWHC 1462

The first-instance judge relied on these cases (along with Moss) as part of a broader “written submissions facilitate justice” narrative. The Court of Appeal accepted the general value of written advocacy but held that these authorities arose in different procedural settings and could not displace the Court of Protection’s bespoke rules and Article 8-sensitive balancing exercise.

Pringle v Nervo [2026] EWCA Civ 266

In a short concurring passage, the Court acknowledged (via that case) that the term “Transparency Order” can sound counter-intuitive: such orders restrict publication, yet they are the mechanism that makes public hearings lawful and therefore can advance (rather than frustrate) open justice within this jurisdiction.

2) Legal Reasoning

(a) Correct characterisation of Court of Protection “public hearings”

The Court drew a sharp line between:

  • Proceedings that are private by default (COPR 2017 r.4.1), and
  • Hearings that may be directed to be held in public under r.4.3, typically with reporting restrictions via PD4C and a Transparency Order.

The first-instance error was to treat a public hearing direction as transforming the entire case into “public proceedings” and to import the openness norms of jurisdictions that are public by default. The Court held this misconceived because the Court of Protection’s architecture is built around protecting P’s privacy and welfare, even while enabling appropriate transparency.

(b) Status of position statements and the necessity of court authorisation

The Court confirmed that position statements, once lodged, are part of “court records” for r.5.9(2) purposes. But it rejected any notion that observers are entitled to them as of right, or that parties may disclose them to observers without a judicial decision.

The judgment is particularly firm that any approach allowing party-controlled disclosure “on request” is incompatible with the rule text: r.5.9(2) requires the court to authorise non-party access, and r.5.9(4) requires consideration of edited (redacted) provision.

(c) Open justice must be demonstrated, and is limited to what is essential

The Court rejected an “understanding the case better” rationale that is untethered from open justice in its constitutional sense. An observer must show how access would advance scrutiny/accountability or genuine public understanding of how and why the court decided what it did. The Court held that access cannot be justified merely by “curiosity, research, education, or personal interest.”

The Court also made an important proportionality point: even where open justice is engaged, disclosure must go no further than is essential, especially where disclosure would disseminate intimate “source evidence” and untested allegations.

(d) Article 8 ECHR and the inadequacy of relying on a Transparency Order alone

The Court treated disclosure of the position statements—containing extensive quotations from deeply personal evidence—as a serious interference with the family’s Article 8 ECHR rights. It held that the first-instance court’s reliance on the existing Transparency Order as “sufficient protection” was flawed because:

  • the order primarily protected identity information and did not protect the full content of sensitive allegations and private narrative; and
  • the order was time-limited and due to expire, meaning protections were not enduring.

The Court therefore faulted the first-instance approach for failing to grapple with redaction and/or restrictions on use—precisely the safeguards contemplated by r.5.9(4) and the family-jurisdiction analogue in PD12R FPR 2010 (notably PD12R para.4.11 on quoted source evidence).

(e) Procedural fairness (Ground 1): retrospective compulsion and end-of-life context

Although acknowledging a general power to vary case management directions, the Court held that varying the earlier “discretion of the parties” position was unfair in the circumstances, highlighting:

  • lack of notice that the request had expanded to an “archive” of earlier statements;
  • the acute timing (immediately after a distressing end-of-life hearing and during P’s final days); and
  • language and framing at first instance that risked characterising a party’s lawful resistance as “obstruction”.

Substantively, the Court found it impermissible to permit retrospective “mining” of earlier position statements on issues that were no longer live (e.g., allegations of fraud/undue influence that were withdrawn and never adjudicated).

3) Impact

Immediate operational impact in the Court of Protection

  • No informal “party-to-observer” disclosure route: observers seeking position statements (or other court record documents beyond judgments/orders given or made in public) should expect to proceed via COPR 2017 r.5.9(2), with a judge deciding.
  • Mandatory consideration of edited disclosure: courts should actively consider redaction and other safeguards under r.5.9(4), particularly where position statements quote private evidence.
  • Timing discipline: requests should, where possible, be raised and dealt with before (or at the outset of) hearings to avoid satellite disputes diverting from welfare decision-making; courts may “guillotine” ill-timed applications by analogy with remote observation practice.

Medium-term rulemaking consequences

The Court explicitly signalled that the ad hoc Court of Protection Rules Committee should address document-disclosure procedure “as a matter of priority”. This creates a clear institutional prompt for structured rules (potentially akin in discipline—though not necessarily in breadth—to PD12R FPR 2010).

Substantive transparency consequences

The judgment re-centres transparency around the minimum necessary information to secure public scrutiny and understanding, suggesting a practical default: provide case summaries, chronologies, and lists of issues (PD4B para.4.2(a)-(c) COPR 2017) as a transparency-friendly alternative to routinely disclosing lawyer-drafted position statements that may embed sensitive evidence.

Complex Concepts Simplified

What is a “position statement” in the Court of Protection?

It is a written document (often prepared by lawyers) that sets out a party’s account of events, the issues for the hearing, the party’s position, and references to evidence. It is designed to help the judge manage and decide the case. It may quote from witness statements, medical records, and other deeply private material.

“Private by default” vs “heard in public”

Under COPR 2017 r.4.1, Court of Protection hearings are generally private. The court can direct a particular hearing to be held in public (r.4.3), but usually with restrictions (a Transparency Order). This does not turn the whole case into a “public proceeding” in the same way as ordinary civil litigation.

What counts as a “court record” and why does it matter?

Once a document is lodged with the court for its purposes, it becomes part of the court’s records. Non-parties do not automatically get access to such documents. In the Court of Protection, a non-party must obtain court authorisation under COPR 2017 r.5.9(2).

Why isn’t “open justice” enough to get all documents?

Open justice is about enabling scrutiny and understanding of court decision-making. It does not create a general right to examine everything that informed the decision. In this jurisdiction, the court must also protect P and others from harm caused by disclosure of intimate information, consistent with Article 8 ECHR.

Conclusion

[2026] EWCA Civ 640 establishes that, although position statements in the Court of Protection become part of the court record once lodged, they are not presumptively disclosable to observers. A non-party must show a demonstrable open-justice justification, and even then the court must consider edited (redacted) disclosure and safeguards under COPR 2017 r.5.9(4), with acute sensitivity to Article 8 rights and P’s welfare.

The decision also reorients transparency practice toward proportionate tools—case summaries, chronologies, and lists of issues—while calling for prompt rules reform by the Court of Protection Rules Committee. Above all, it reiterates a constitutional and practical priority: the Court of Protection exists for P’s benefit; transparency must support justice, not overwhelm it.