Summary — Re: Disclosure of Position Statements (Court of Appeal)

Factual and Procedural Background

Proceedings were brought in the Court of Protection under the Mental Capacity Act 2005 concerning Respondent, who suffered a catastrophic brain injury in May 2024 and died on 8 July 2025. The Appellant (the Respondent's mother) opposed disclosure to a non-party observer (First Intervener) of position statements prepared and filed by the parties for a series of public hearings held under a Transparency Order. The hearings addressed, inter alia, the validity and applicability of an Advance Decision to Refuse Treatment (ADRT) contained in a document styled a "Living Will" and allegations of fraud/undue influence. The Judge below (Judge Poole) ordered that specified position statements from several hearings be disclosed to the First Intervener. The Appellant appealed that disclosure order to the Court of Appeal. The Official Solicitor was given leave to intervene on general issues; the First Intervener (a regular observer) intervened in support of disclosure. The Court of Appeal allowed the appeal and set aside the disclosure order.

Legal Issues Presented

1. Whether, and in what circumstances, position statements prepared and filed for Court of Protection hearings may be disclosed to non-party observers (specifically the First Intervener) consistent with the Court of Protection Rules 2017 (COPR 2017) and the principle of open justice.
2. Whether the Judge's variation of an earlier case-management direction (permitting parties "at their discretion" to disclose position statements) without formal application or adequate notice was procedurally unfair.
3. How Article 8 ECHR privacy interests of P and family members should be balanced against the public interest in transparency when considering disclosure of position statements, including the need to consider redaction, anonymisation or use restrictions under rule 5.9(4) COPR 2017.

Arguments of the Parties

Appellant's Arguments

• The Judge irregularly varied earlier orders without a formal application or proper notice, producing unfairness (Ground 1).
• The Judge erred in law by treating proceedings as effectively "public" and by importing practice from jurisdictions public by default; position statements are court records but require court authorisation for disclosure under rule 5.9(2) COPR 2017 (Ground 2).
• The Judge failed to apply rule 5.9(4) COPR 2017 to consider redaction/use restrictions and wrongly relied on the Transparency Order as sufficient protection of Article 8 rights, notwithstanding its limited scope and imminent expiry.

First Intervener's Arguments

• Disclosure would advance open justice and public understanding of how Court of Protection decisions on end-of-life matters are reached; observers need access to position statements to report and educate accurately.
• The Judge's case-management decision to permit disclosure was within judicial discretion; guidance on procedure for disclosure is necessary pending rule changes.

Second Intervener's (Official Solicitor) Arguments

• Urged caution about wide dissemination of intensely personal material; emphasised the vulnerability of P and the need to respect Article 8.
• Suggested any interim procedure should mirror safeguards in existing remote-observation regulations and should require demonstrable necessity, procedural safeguards and consideration of redaction/use restrictions.

Points of Agreement (between parties and interveners)

• Position statements, once lodged, are court records under rule 5.9(2) COPR 2017.
• The Judge erred in parts of his proposed guidance (at [J2/36]) and the issue should be considered by the Court of Protection Rules Committee (COPRC) as a priority.
• The decision to vary a case-management direction must be exercised fairly and judiciously.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629	Open justice principle; documents lodged with the court form part of court records.	Held position statements are "court records" within rule 5.9(2) COPR 2017; required court authorisation for disclosure to non-parties.
Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20	Background factual judgment in the underlying proceedings.	Cited as one of the substantive judgments in the case history informing the transparency/disclosure dispute.
Re AB (Disclosure of Position Statements) [2025] EWCOP 25	The second judgment (below) addressing contested issue of disclosure of position statements.	Cited as the judgment under appeal; Court of Appeal reviewed and found errors in parts of its reasoning.
Re Gardner (Deceased)(Duration of Transparency Order) [2025] EWCOP 34	Judgment addressing duration/discharge of the Transparency Order.	Used to explain subsequent discharge of the Transparency Order and its effect on naming/naming protections.
Hinduja v Hinduja [2022] EWCA Civ 1492	Principles on case management and the Practice Direction reversing default privacy settings in COP.	Cited for the effect of PD4C and the balance between open justice and privacy; cited on appellate deference to case management critiques.
Re M [2016] EWCOP 34	Commentary on wider abstract concepts protecting society within COP jurisdiction.	Quoted to illustrate that COP must weigh wider public interests alongside protection of the vulnerable.
R (MPC) v PMP [2025] EWHC 1462	Illustrative authority on value of written arguments and disclosure flexibility in public jurisdictions.	Referenced by the Judge below as part of the materials supporting disclosure practice in other jurisdictions; Court of Appeal criticised importing such practice without adaptation.
Hayden v Associated Newspapers Limited [2022] EWHC 2693 (KB)	Commentary on written arguments' value to administration of justice.	Cited by the Judge below for general propositions about written materials assisting hearings; Court of Appeal noted limitations when applied in COP context.
Moss v The Upper Tribunal [2024] EWCA Civ 1414	Procedure for provision of position statements to observers in a jurisdiction public by default.	Judge below modelled guidance on Moss; Court of Appeal held importing that procedure into COP was inappropriate without regard to COPR 2017 and Article 8 considerations.
R v Guardian News and Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420 [2013] QB 618	Authority referenced in Moss regarding access/disclosure principles.	Cited as antecedent authority referenced in Moss; used to show limits of cross-jurisdictional guidance.
Re HMP [2025] EWCA Civ 824; [2025] 1 WLR 5201	Open justice objectives and public scrutiny principles.	Cited for the twofold objectives of open justice (scrutiny/accountability and public understanding).
W v P [2025] EWCOP 11	Public interest and distinction between public interest and public curiosity in COP cases.	Cited to emphasise that public interest differs from mere public interest and to caution on disclosure.
Independent News Media v A [2010] 1 WLR 2262	Principles on balancing competing Convention rights in sensitive proceedings.	Referred to in relation to balancing Articles 8 and 10 and COP's protective role.
Scott v Scott [1913] AC 417	Common law exception to open justice.	Referenced to support the proposition that vulnerable individuals may be entitled to privacy.
Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] 2 WLR 815	Support for the proposition that COP hearings are private by default.	Cited to reinforce that COP proceedings are private by default under rule 4.1(1) COPR 2017.
Re EM [2022] 4 WLR 101	Judicial comment on mandatory anonymisation of documents.	Quoted (Mostyn J) to illustrate criticisms of over-prescriptive anonymisation for litigants; Court of Appeal noted debate about anonymisation of position statements.
Mannion v Ginty [2012] EWCA Civ 1667	Appellate deference to first-instance case management decisions.	Cited to explain high threshold for appellate interference with evaluative case-management judgments.
Pringle v Nervo [2026] EWCA Civ 266	Commentary on the purpose of Transparency Orders.	Cited (Males LJ) to note the counter-intuitive role of Transparency Orders in enabling public hearings with reporting restrictions.

Court's Reasoning and Analysis

The Court of Appeal analysed the matter in light of COPR 2017 (notably rules 4.1, 4.3 and 5.9), the Practice Directions (PD4C/PD4A) and authorities on open justice and privacy. Key analytical steps were:

• Establishing that Court of Protection proceedings are private by default under rule 4.1 COPR 2017, even where particular hearings are ordered to be in public under rule 4.3; a direction for a public hearing does not convert the entire proceedings into proceedings public by default.
• Confirming that position statements, once lodged with the court, are "court records" (Dring) and therefore fall within rule 5.9(2), so disclosure to non-parties requires court authorisation rather than unilateral party disclosure.
• Reiterating the limits of open justice: access to documents must be justified by demonstrable advancement of open justice objectives, not mere curiosity or research; the applicant must explain why access advances open justice.
• Finding procedural unfairness in the Judge's variation of his earlier case-management direction: the Appellant had inadequate notice and was under immediate emotional and practical pressure (imminent transfer to hospice), and the Judge treated the Appellant's choice not to disclose as obstructive rather than as compliant with the earlier order.
• Concluding substantive error in the Judge's decision to order unconditional disclosure of all position statements: the Judge failed adequately to apply rule 5.9(4) (consideration of edited disclosure/redaction/use restrictions) and overstated the protective effect of the Transparency Order (which was limited in scope and soon to expire), thereby understating the Article 8 interference entailed by disclosure of highly personal source material.
• Rejecting the Judge's attempt to import a disclosure procedure modelled on jurisdictions public by default (e.g., Moss) without appropriate adaptation to COPR 2017 and the distinct Article 8 welfare considerations applicable in the Court of Protection.
• Proposing interim practical measures pending COPRC consideration: a two-stage approach requiring an applicant to show why disclosure advances open justice, followed by a fact-specific proportionality exercise; recommending disclosure, where appropriate, of short case summaries/chronologies/issues rather than full position statements as a first step; and emphasising that decisions about disclosure should be judicial and, where possible, determined before or at the outset of hearings.

Holding and Implications

APPEAL ALLOWED

Holding:

• The Court allowed the appeal on both grounds and set aside paragraph 2 of the Judge's order of 14 July 2025 requiring the Appellant to disclose her position statements to the First Intervener.

Implications:

• Direct effect: the compulsory disclosure order against the Appellant for the specified position statements was vacated; the First Intervener's compelled access is removed.
• The Court emphasised that position statements are court records and require court authorisation for disclosure to non-parties under rule 5.9(2) COPR 2017; courts must consider rule 5.9(4) (edited disclosure/redaction/use restrictions) and Article 8 ECHR before ordering disclosure.
• The Court declined to endorse the guidance at [J2/36] produced by the Judge below and recommended that the Court of Protection Rules Committee (COPRC) urgently consider a formal procedure for disclosure to observers; in the interim the Court recommended a two-stage test and suggested disclosure of short agreed documents (case summary, chronology, issues) as a proportionate means to advance open justice without undue intrusion.
• The judgment does not purport to create a broad new rule permitting unfettered access to position statements; rather it clarifies that any disclosure must be justified, proportionate and supervised by the court, with particular regard to P's Article 8 rights.

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Anonymisation note: All parties, individuals, entities and locations have been anonymised in this summary in accordance with the instruction to replace Personally Identifiable Information with consistent generic placeholders.