Esper v NHS North West London ICB [2023] EWCOP 29

Transparency in committal proceedings This was an appeal from a COP district judge's decision in committal proceedings to (a) publish a judgment naming Dr Esper as a contemnor; and (b) permit the publication of Dr Esper's name, while restricting the identification of AB, and two other relatives of AB who are respondents in the Court of Protection proceedings.

Citation

Case name: "Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings)".

Essex

Essex newsletter 134.pdf

This case has been summarised on page 29 of 39 Essex Chambers, 'Mental Capacity Report' (issue 134, September 2023).

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.  

The WLR Daily case summaries

[2023] WLR(D) 300B

Court of Protection

Esper v NHS North West London Integrated Care Board and another

[2023] EWCOP 29B

2023 June 20; July 10

Poole J

Contempt of court— Committal application— Court of Protection proceedings— Defendant found guilty of contempt — Defendant named as contemnor in published judgment— Whether court obliged to permit publication of contemnor’s details— Whether Court of Protection rules prevailing over practice direction on committal for contempt of court as regards non-disclosure of contemnor’s identity— Human Rights Act 1998 (c 42), s 12, Sch 1, Pt I, arts 6, 8, 10 — COPR rr 4, 21.8(5)

In committal proceedings in the Court of Protection the defendant admitted breaches of the court’s order restricting contact with the protected person, a relative of his, and he was found guilty of contempt of court. The district judge published a judgment naming the defendant as a contemnor and permitting the publication of his name while restricting the identification of the protected person and two other relatives who were respondents to the Court of Protection proceedings. The defendant appealed on the grounds that the judge had been wrong to decide, inter alia: (i) that he was obliged to permit the publication of the defendant’s details and publish them in accordance with Practice Direction: Committal for Contempt of Court—Open Court, issued in March 2015 (“PD 2015”); (ii) that COPR r 21.8(5) permitted him to direct the anonymity of the other parties to the application in proceedings for contempt of court but prevented him directing the anonymity of the defendant; (iii) and that it was in the interests of justice that a contemnor who had been found to be in breach be identified even though no committal order had been made.

On the appeal—

Held, appeal dismissed. (1) There was an apparent conflict between the mandatory requirement in paragraph 13 of PD 2015 that a defendant who had committed a contempt of court had to be named, and their name published, and COPR r 21.8(5) which required the court not to disclose the identity of a party (which would include a defendant) if it considered non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness (“the necessity conditions”). COPR r 21.8(5) applied whether the defendant had or had not been found guilty of contempt of court, and whether they had or had not been made the subject of a committal order. However, it being established that court rules which had the force of delegated legislation were to prevail in the event of conflict with a practice direction, PD 2015 did not take precedence over COPR Pt 21 so as to make publication of the name of the defendant mandatory even where the necessity conditions of COPR r 21.8(5) for non-disclosure were met. Accordingly, judges in the Court of Protection ought to apply COPR r 21.8(5) when considering an order for the non-disclosure of the identity of any party or witness in committal proceedings, including the contemnor, and would be required to order non-disclosure of the identity of any party or witness if the two necessity conditions within the rule were met, namely, that non-disclosure of the identity of a party or witness was necessary to secure the proper administration of justice and to protect that person's interests. That position was unaffected by COPR rr 4.1 to 4.4 which did not give the court power to restrict reporting in committal proceedings in the Court of Protection (paras 9, 14, 15, 18, 31, 32, 44).

Dicta of Auld LJ in Regina (Mount Cook Land Ltd) v Westminster City Council [2017] PTSR 1166, paras 67, 68, CA applied. Sunderland City Council v Macpherson [2023] EWCOP 3M, Ct of Protection, dicta of Mostyn J in EBK v DLO [2023] 4 WLR 51B and Practice Direction (Committal for Contempt of Court: Open Court) [2015] 1 WLR 2195Not on Bailii! considered.

(2) That as regards the first limb of the test under condition under COPR r 21.8(5), that non-disclosure was necessary to secure the proper administration of justice, the requirement of necessity meant that no lesser measure would secure that end and only a non-disclosure order would do. Having regard to the authorities, in order to justify such an order in contempt proceedings in the Court of Protection it would have to be established that (i) without a non-disclosure order, the application to commit could not effectively be tried or the purpose of the hearing would be effectively defeated, or (ii) the purpose of the proceedings within which the committal application was made would be effectively defeated, or (iii) the parties seeking justice, namely the applicant for the committal and any persons on behalf of whom the application was made, would be deterred from bringing their application, or (iv) the order was necessary to protect the human rights of the party or witness, having regard to the importance of the protection of the freedom of expression protected by article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and the extent to which the person's identity had, or is was about to, become public, and the public interest in publishing their identity pursuant to section 12 of the Human Rights Act 1998, or (v) in some other way the proper administration of justice would be undermined. As regards the second limb, which enjoined the court to consider whether non-disclosure of the identity of a party or witness was necessary to protect that person's interests, that would include consideration of the protection of the person’s rights under articles 6 and 8 of the Human Rights Convention. In the case of relatives of the protected person who were witnesses, it might often be established that ordering the non-disclosure of their identity would be necessary to secure the administration of justice and to protect their interests. However, it would only be in a rare case in which the two-limb necessity test would be satisfied so as to allow the court to order non-disclosure of a defendant's identity, and an extremely rare case where both limbs would be met in respect of a defendant found to have committed a contempt of court and/or who has been made the subject of a committal order (paras 36, 37, 39, 40, 41–43).

Dicta of Earl Loreburn in Scott v Scott [1913] AC 417B, 446, HL(E), dicta of Warby J in SMO (A Child) v Tiktok Inc [2021] 2 FLR 917Not on Bailii!, para 14 and dicta of Dingemans LJ in XXX v Camden London Borough Council [2020] 4 WLR 165B, paras 16–22, CA applied.

(3) The district judge in the present case had correctly applied the first limb of the test under COPR r 21.8(5) and, there being no doubt that it was not met, had properly conclude that a non-disclosure order ought not to be made in respect of the defendant’s identity, since both tests had to be met in order for there to be such an order. While the judge was not required to publish a transcript of the judgment on the judiciary website, he was free to do so in his discretion and, on doing so, had been required to disclose the identity of the defendant. There had been no inconsistency in the judge refusing non-disclosure in respect of the defendant while granting it in respect of the protected person’s other relatives, as the considerations applying to parties other than the defendant were different. Overall, the judge’s decision not to make an order for non-disclosure of the contemnor’s identity was one which he had been entitled, and indeed required, to make given the strict tests of necessity under COPR r 21.8(5) and the fundamental importance of open justice, including in relation to committal proceedings (paras 61, 63–65, 68).

Per curiam. Whether or not the committal hearing is listed in public or in private, PD 2015 requires the full name of the defendant to appear on the list. Given that PD 2015 should yield to COPR r 21.8(5), that rule must allow the Court of Protection to make a non-disclosure order regarding the identity of the defendant or any party or witness in committal proceedings in the Court of Protection even before the first hearing and regardless of the mandatory terms of paragraph 13 of PD 2015. If the tests under COPR r 21.8(5) are met, then the court must order the non-disclosure of the defendant's name in the court list, notwithstanding the mandatory terms of paragraphs 5 and 11 of PD 2015 to the contrary. As a matter of practicality, and pending any clarification by the Court of Protection Rule Committee, every committal application in the Court of Protection should be put before the appropriate judge prior to the first hearing so that the question of whether COPR r 21.8(5) must prevent the identification of the defendant's name in the public court list can be considered (paras 51–53).

Nicholas O'Brien (instructed by Miles & Partners) for the defendant.

Benjamin Tankel (instructed by Capsticks LLP) for the NHS care board.

Sophy Miles (instructed by Edwards Duthie Shamash) for the protected person, by the Official Solicitor.

Jeanette Burn, Barrister

Referenced Legislation

Human Rights Act 1998 (c 42), s 12, Sch 1, Pt I, arts 6, 8, 10

COPR rr 4, 21.8(5)

CASES DATABASE

Full judgment: BAILII

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Date: 10/7/23🔍

Court: Court of Protection🔍

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Published: 15/7/23 20:25

Cached: 2024-07-16 03:36:40