Family Division

Published November 17, 2009

Independent News and Media Ltd and Others v A

Before Mr Justice Hedley

Judgment November 12, 2009

Court of Protection proceedings were within the recognised exceptions to the open justice principle. Since article 10 of the European Convention on Human Rights, guaranteeing freedom of expression, was not thus immediately engaged, it was for an applicant to demonstrate good reason for publicity before the court was obliged to conduct the conventional balancing exercise between rights under article 10 and article 8, protecting the right to privacy.

Mr Justice Hedley, so stated in the Family Division, when granting applications made by Independent News and Media Ltd, Guardian News and Media Ltd, Times Newspapers Ltd, Associated Newspapers Ltd, Telegraph Media Group Ltd, Independent Television News and the Press Association, for permission to attend hearings in the Court of Protection and to report those proceedings in respect of A, a young adult, appearing by his litigation friend the Official Solicitor, who, despite possessing remarkable gifts, had severe learning difficulties and was likely to remain dependent on others for care and the management of his affairs.

Mr Guy Vassall-Adams, instructed by Ms Romana Canneti, Kensington, for the applicants; Mr Gavin Millar, QC and Ms Barbara Hewson for the Official Solicitor.

MR JUSTICE HEDLEY said that the Court of Protection, in its current form, had been created by the Mental Capacity Act 2005 with very wide powers to deal with both the person and the property of those who lacked capacity to make decisions for themselves.

While much of its business comprised matters of interest only to the family concerned, it was likely that some exercise of its powers would raise matters of genuine public importance and concern.

Rules 90 to 93 of the Court of Protection Rules (SI 2007 No 1744), supplemented by Practice Direction PD 13A (Court of Protection: Reporting restrictions), provided that ordinarily hearings should take place in private, that the burden of establishing that a particular case should be heard in public or reported lay on the applicant; and that an application should only be granted where it appeared to the court that there was good reason for so doing.

Although there was no statutory commentary on “good reason”, those words did not import a concept of being exceptional and should be given their ordinary meaning.

Rejecting the media’s contention that once an application was made under rule 91 of the 2007 Rules there was an immediate engagement of article 10 rights, obliging the court to undertake the balancing exercise, with good reason established if the balance favoured the media, in his Lordship’s view a two-stage approach was required.

First, the court needed to consider if good reason were established which was a gate-keeping test and necessarily of a somewhat summary nature. A finding of good reason would not automatically entitle an applicant to an order but would obligate the court to undertake the exercise in In re S (a Child) (Identification: Restrictions on publication) (The Times October 29, 2004; [2005] 1 AC 593), always bearing in mind the statutory purpose.

The standard required to find good reason should not be set too high. The absence of good reason would preclude the making of any order It was for the media to demonstrate what should be allowed to be reported rather than for A to show what should be restricted with everything else necessarily allowed.

The media’s case was: A was well known to the public through the exercise of his gifts; also well known were the nature and gravity of his disability.

Thus the need for decisions to be made on his behalf, the financial and personal implications of such decisions and the consequent responsibility that lay on those who took those decisions was self-evident to the public.

There was accordingly, it was said, a proper public interest in how the Court of Protection dealt with those issues together with its decisions and the reasons for them.

Mr Millar submitted that there was no such good reason. He contended that the case represented, in effect, the classic confusion between public interest and what the public found interesting. Those were intimate matters which no capacitous person would have to share in public and it was wrong that A should have to do so.

His Lordship said those were weighty considerations. He concluded that good reason within rule 93 was shown. That was because:

First, all those issues in principle were already within the public domain and the questions which they raised were readily apparent.

Second, the court was equipped with powers to preserve privacy while addressing the issues in the case.

Third, the decision of the court would have major implications for the future welfare of A and it was in the public interest that there should be understanding of the jurisdiction and powers of the court and how they were exercised.

His Lordship emphasised that it was the combination of those reasons that impelled his decision.

Here, the balance was in favour of the media being allowed to attend what were in all other respects private proceedings, and being permitted to report material already in the public domain or that answered the legitimate questions of a reasonable person who knew what was already in the public domain.

Such material would include A’s name, the nature of his talent and disability, his reliance on others for care and the management of his affairs but not, inter alia, details of his care and medical treatment, nature of his earnings or family discussions.

Solicitors: Irwin Mitchell.

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