Re RP and Another v SP, SP, CP, MP, and AP
| Jurisdiction | England & Wales |
| Judge | Senior Judge Lush |
| Judgment Date | 05 January 2016 |
| Neutral Citation | [2016] EWCOP 1 |
| Court | Court of Protection |
| Docket Number | Case No: 12687368 |
| Date | 05 January 2016 |
[2016] EWCOP 1
Senior Judge Lush
Case No: 12687368
Michael Paget, instructed by DH Law, for the applicant
Catherine O'Donnell, instructed by Bishop & Light, for the respondents
Hearing date: 7 December 2015
This is a dispute about the appointment of a deputy for property and affairs, which I am treating as an application for reconsideration of a decision I made on 21 September 2015. Although that decision was made at a hearing, only the applicant and her counsel and solicitor attended and, for reasons that will become apparent, the respondents and their legal advisers were unaware that the hearing was taking place.
The background
These proceedings relate to Ron, who was born on 21 March 193He lives in West Sussex, was formerly a tobacco trader, and has been married three times.
The respondents are his children from his first marriage. They are:
(a) Sven, who is 57, lives in West Sussex and is married to Sarah, who is also a respondent;
(b) Claus, who is 56 and lives in North Carolina, USA;
(c) Marc, who is 53 and lives in Surrey; and
(d) Andrea, who is 51 and lives in Hampshire.
Ron married his second wife in 1981. They divorced in 2003 and she died of cancer the following year.
He has one daughter from his second marriage, Z, who is the applicant. She is 34 and lives in the same town as her father.
Ron married for the third time in 2005, but the marriage was of very short duration.
He suffered a stroke in 2007 and was formally diagnosed as having vascular dementia in 2014.
He owns a flat, which is worth about £450,000, and has approximately £75,000 in a bank account.
Ron receives an income from a tobacco company in the United States, which he set up himself and is now run by his son, Claus. He receives quarterly payments, which tend to vary in amount.
On 19 May 2015, Z applied to the court for a solicitor to be appointed as Ron's deputy for property and affairs. In the papers accompanying the application she said:
"Due to suffering with dementia Ron is unable to manage his property and affairs. It is feared that other members of the family may be taking advantage of Ron's lack of capacity, and recently a cheque was drawn for £80,000 which Ron apparently signed but has no recollection of. Ron's property and affairs therefore require urgent protection, and the applicant seeks the Court of Protection to appoint a professional deputy, Miss Rheian Davies, Solicitor, to act as his deputy in this respect. Ron is unable to protect his financial interests himself, and no one else has the legal authority to do so. Therefore it is necessary to urgently appoint a professional deputy."
DH Law Ltd, Solicitors, of 130–132 Uxbridge Road, Hanwell, London W7 3SL acted for the applicant in connection with the application. Miss Rheian Davies is a partner in that firm.
The objections
On 18 June 2015 Ron's eldest son, Sven, filed an acknowledgment of service opposing the application. He said:
"I oppose the application. My wife and I have managed my father's financial affairs in the UK for over 20 years. This has often involved him lending money. He has never managed his finances well. We have a better understanding of his finances than he ever has had. The application for deputyship has been made because my father's youngest child Z wishes to gain knowledge and control of my father's finances. Z has no knowledge of my father's affairs. Z has struggled with drug addiction and managing her own life in the past. I have been concerned that Z is exerting control over my father and using threats of self harm and cutting contact between my father and her child to influence his behaviour and extract money from him. This has led to my father reducing contact with his wider family. This has also led to my father giving Z money despite telling people he did not want to do so. There have been concerns expressed by social services about Z's relationship with my father. I propose the appointment of Sarah as deputy. I seek further time to file witness evidence."
Sven's wife, Sarah, and his brothers and sister filed similar acknowledgments of service uniformly opposing the application.
Procedural matters
On 9 July 2015 I made an order setting out a timetable for filing and serving evidence and listed the matter for hearing on 21 September 2015.
The applicant filed a second witness statement on 31 July 2015 and her solicitors, DH Law, instructed Michael Paget of counsel, who produced a position statement on 16 September 2015.
The respondents instructed Bishop & Light, Solicitors, Cambridge House, Cambridge Grove, Hove BN3 3ED to act on their behalf and they filed witness statements, all of which were dated 21 August 2015. Sarah's witness statement was the most detailed.
The respondents' solicitors filed a position statement on 16 September 2015 in which they:
(a) said that "Ron's affairs are complex and involve an international element, but his assets and income are not sufficient to justify the appointment of a professional deputy";
(b) proposed the appointment of Sarah as a deputy; and
(c) asked the court to make an order for costs against the applicant.
The hearing
The hearing which took place on Monday 21 September was attended only by Michael Paget of Cornerstone Barristers, Rheian Davies and Z.
We were all rather surprised that the respondents neither attended nor were represented at the hearing, especially because they had filed a position statement five days earlier, as directed in my order of 9 July.
I decided that it was in Ron's best interests to proceed with the hearing notwithstanding the absence of the respondents, and was informed that:
(a) Rheian Davies was admitted as a solicitor in 2006, prior to which she had spent fifteen years as a psychiatric nurse;
(b) Ron's affairs are complicated, and not entirely transparent. Companies seem to have been formed and then wound up;
(c) there was an issue regarding Ron's beneficial interest in his flat, which had only recently been rectified as a result of these proceedings;
(d) the respondents' character assassination of their half-sister Z was totally unwarranted because she wasn't seeking her own appointment as deputy, but the appointment of an independent professional who can ensure that Ron's funds are being managed in his best interests and that his needs are being met;
(e) Ron could probably afford to have a small team of carers to ease the burden on his daughter Z, but no effort had been made to investigate or resolve this. Sarah actually dismissed a cleaner who had come on the recommendation of a local charity; and
(f) the respondents don't actually visit Ron.
I decided to appoint Rheian Davies as an interim deputy for a year, with security pitched at £50,000. Some disclosure orders were needed and I invited Michael Paget to draft them.
Application for reconsideration
On 2 October 2015 Sarah filed an application notice in which she sought the following order:
"To urgently set aside the interim order of 21st September appointing the applicant as deputy. To relist this case for further directions at the earliest opportunity."
She said that:
"The respondents did not attend or have representation at the directions hearing on 21st September. Notice of the directions appointment of 21st September was communicated to the parties by inclusion in the two page directions issued on 9th July. The respondents' solicitors operate a paperless case management system. Incoming post is scanned, the original paper documents are shredded and case 'papers' are held in digital files. The directions of 9th July were received, scanned and emailed to the solicitor on 13th July. Those directions consist of one page and do not contain the second page which contained the listing notice. The first scanned copy included a marketing flyer at page 2 and the solicitor asked for the document to be scanned again. The document was scanned again but still consisted of one page of directions and a blank page. The respondents were therefore unaware of the directions appointment on 21st September and did not attend. The court office have indicated that the order would have been doubled-sided and believe the fault lies with the respondents' solicitors. The fault does not lie with the respondents. The respondents object to the interim order appointing [the solicitor for] the applicant and ask for it to be set aside with immediate effect. The respondents ask the court to relist this case at the earliest opportunity."
On 13 October 2015 I made a further order relisting this matter for hearing on Friday 30 October. Three days later the listing and appeals team received an email from Sophia Withers of Bishop & Light Solicitors stating that she would be on leave on 30 October and asked for the hearing to be re-scheduled. On 21 October I made a further order relisting the application for hearing on 7 December 2015.
On 3 December the respondents' solicitors filed a deputy's declaration and a witness statement made by Ron's accountant, Allan Pratt, who is based in Raynes Park.
The deputy's position statement
In anticipation of the hearing, Michael Paget, counsel for the applicant, filed a position statement, in which he said as follows:
(1) On 21 September 2015 Ms Rheian Davies ('the deputy') was appointed as interim deputy for property and financial affairs for Ron until 20 September 2016. Ron's affairs are complex and, putting at its lowest, family members do not appear to have been acting in his best interests. This is either through incapability or worse.
(2) The respondents were not represented at that hearing,...
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