Esper v NHS NW London ICB (Appeal: Anonymity in Committal Proceedings)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 10 July 2023 |
| Neutral Citation | [2023] EWCOP 29 |
| Court | Court of Protection |
| Docket Number | Case No: 13452747 |
[2023] EWCOP 29
Mr Justice Poole
Case No: 13452747
IN THE COURT OF PROTECTION
ON APPEAL FROM DISTRICT JUDGE BECKLEY
Nicholas O'Brien (instructed by Miles and Partners) for the Appellant
Benjamin Tankel (instructed by Capsticks LLP) for the First Respondent
Sophy Miles (instructed by Edwards Duthie Shamash for the Official Solicitor) for The Second Respondent, AB
Hearing date: 20 June 2023
Introduction
This appeal concerns transparency in committal proceedings in the Court of Protection. The Appellant is Dr Philip Esper who is the Defendant in committal proceedings in the Court of Protection in which his relative, AB, is the protected party. During the course of the Court of Protection proceedings the Court made an order restricting the Appellant's contact with AB and attached a penal notice to that order. The Respondent to this appeal made an application to commit the Appellant to prison for contempt of court by way of breaches of the order restricting contact. The Appellant admitted three such breaches and on 1 March 2023 the Court recorded findings of contempt of court. On 7 June 2023 DJ Beckley decided that no sanction should be imposed for the contempt of court. The transcript of his judgment shows that the reasons he gave for not imposing a penalty were,
“1) The length of time since the last proven or admitted breach of the order.
2) The fact that whilst the sentence for contempt of court is very punitive and preventative in nature, the focus in this case is getting Dr Esper to comply with court orders, something that he has repeatedly and deliberately refused to do.
3) There does appear to have been greater compliance.”
Neither the finding of contempt nor the decision on sanction are appealed. There is no challenge to the decision to hear the contempt proceedings in public. Furthermore, there is no appeal against DJ Beckley's refusal to recuse himself after a recusal application was made on 7 June 2023 on behalf of the Appellant. In his skeleton argument for the appeal, Mr O'Brien on behalf of the Appellant states that the appeal is brought against DJ Beckley's decisions:
i) To publish a judgment naming Dr Esper as a contemnor; and
ii) To 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.
These may appear to be narrow issues but their consideration has revealed some difficulties with the interpretation and application of the court rules and practice directions relating to committal applications in the Court of Protection.
Directions have been given listing the appeal before a Tier 3 judge in the Court of Protection for a “rolled up” hearing at which permission to appeal will be considered and, if permission is given, the substantive appeal will be determined. When making the directions order, Senior Judge Hilder also directed that the Appellant's anonymity should be preserved pending the outcome of the appeal.
The grounds of appeal are,
i) “The judge was wrong to decide that he was obliged to permit the publication of the Appellant's details and publish them in accordance with the Lord Chief Justice's Practice Direction: Committal for Contempt of Court — Open Court, March 2015 (as amended in 2020).
ii) “The judge was wrong to decide that Court of Protection Rule 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 appellant.
iii) “The judge was wrong, to the extent that he had a discretion, as to whether he directed the anonymity of the appellant, when he:
(a) decided that it was in the interests of justice that a contemnor who had been found to be in breach should be identified, even though no committal order was being made;
(b) had indicated by his observations and conduct during the hearing, apparent bias against the appellant.”
I have received submissions from Mr O'Brien for the Appellant, Mr Tankel for the Respondent ICB, and Ms Miles on behalf of the Official Solicitor as AB's Litigation Friend. I also received written and oral submissions from Professor Kitzinger of the Open Justice project and written submissions, which were those he also provided to DJ Beckley, from Mr Farmer of PA Media.
Within the Court of Protection proceedings, a Transparency Order has been made which prevents information being published or communicated that identifies or is likely to identify AB, and his relatives who are the other respondents in those proceedings, including Dr Esper. That order remains in force. However, as is standard form, the Transparency Order expressly excludes any committal proceedings from its ambit. In the current committal proceedings, DJ Beckley has made a further order which applies to the committal proceedings, and which prevents the reporting of the names and some other specific details of AB and two of his relatives identified in his order, but which he did not extend to prevent the identification of Dr Esper. That decision not to prevent the disclosure of Dr Esper's identity is the decision central to this appeal.
There has been no opposition to the orders in the committal proceedings or in these appeal proceedings that prevent the reporting of the identity of AB or the other relatives who were parties, or the publication or communication of the other details DJ Beckley identified as being unsuitable for reporting or disclosure. Furthermore, DJ Beckley permitted the Appellant's age and profession to be reported.
In relation to the issues raised by this appeal, I have been referred to my own judgment in Sunderland City Council v Macpherson [2023] EWCOP 3, and the decision of Mostyn J in EBK v DLO [2023] EWHC 1074 (Fam). Mostyn J's judgment was on an application for permission to bring contempt proceedings for breach of s. 12 of the Administration of Justice Act 1960 within family proceedings under s.8 of the Children Act 1989, but in a comprehensive review he also considered the question of the naming of a defendant to committal proceedings in the Court of Protection.
Recently, the rules governing committal proceedings in the Civil Procedure Rules (CPR), Family Procedure Rules (FPR), and Court of Protection Rules (COPR) have all been amended with the intention of achieving consistency within all three sets of rules. Previously, there were differences between the sets of rules but the Lord Chief Justice's Practice Direction: Committal for Contempt of Court — Open Court, March 2015 (PD 2015) covered all committal proceedings to which those sets of rules applied. Examination of the transparency provisions within the relevant rules and practice directions during this appeal has revealed some anomalies and inconsistencies:
i) Whereas PD 2015 was amended in 2020 to reflect the new committal rules in the CPR, no such amendment was been made in the light of similar amendments to the FPR and COPR.
ii) As a consequence, there are some apparent inconsistencies between the requirements of PD 2015 and those of the COPR and FPR in relation to the circumstances in which the publication of the name of a defendant in committal proceedings may be forbidden.
iii) Whereas the COPR provide wide powers to protect the anonymity of P in Court of Protection proceedings, there are only narrow circumstances in which P or any other party's identity will be protected in contempt proceedings arising out of Court of Protection proceedings, namely those set out at COPR r21.8(5).
iv) Whereas COPR r21.8(5) requires the court to order the non-disclosure of the identity of any party or witness only if certain conditions are met, the equivalent rule in the CPR, applies to “any person”.
v) The requirements as to the listing of a committal application in the Court of Protection, and the requirement to publish a transcript of a judgment in committal proceedings are less than clear.
PD 2015 and COPR r21.8(5)
The preamble at paragraph 1 of the Practice Direction: Committal for Contempt of Court – Open Court [2015] 1 WLR 2195 (PD 2015) makes it clear that it applies to proceedings for committal for contempt of court under the Court of Protection Rules 2007. PD2015 continues,
“Open Justice
3. Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are made in, public. This rule applies to all hearings, whether on application or otherwise, for committal for contempt irrespective of the court in which they are heard or of the proceedings in which they arise.
4. Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Derogations shall, where justified, be no more than strictly necessary to achieve their purpose.
Committal Hearings – in Public
5. (1) All committal hearings, whether on application or otherwise and whether for contempt in the face of the court or any other form of contempt, shall be listed and heard in public.
[But] …
9. In considering the question whether there are exceptional circumstances justifying a derogation from the general rule, and whether that derogation is no more than strictly necessary the fact that the committal hearing is made in the Court of Protection or in any proceedings relating to a child does not of itself justify the matter being heard in private. Moreover, the fact that the hearing may involve the disclosure of material which ought not to be published does not of itself justify hearing the...
To continue reading
Request your trial