A little while ago we wrote about a case called Cape v Dring. It wasn’t a family case at all, in fact it was something to do with asbestos, and the reason we wrote about it was because it dealt with the principles that apply to applications for sight of documents produced in the course of a court case under the ‘open justice principle’. Although it didn’t apply directly to family court cases, where the privacy rules make the context rather different, we thought that it might have some potential relevance in family court cases where a journalist wanted to see documents to help them understand, scrutinise and report upon a case that raised issues of public interest.

We haven’t yet seen Cape v Dring being directly used in this way, but in a judgment recently published we can see how a judge dealing with a Court of Protection matter has had to wrestle with it. The Court of Protection deals with decision making where a person may lack capacity to make that decision – in this case the issues were about the management of a family trust by Z (the person the court had accepted lacked capacity). The case is called Re Z [2019] EWCOP 55, and although the case was dealt with in private, the judgment was published by the judge because it was an example of the Cape v Dring guidance being applied in a different context.  

The acts of Z are somewhat unusual and not obviously about the principles of open justice at all. The open justice principle and the Dring guidance can potentially be applied in cases heard in private, but usually one would expect applications for access to documents to be made on the basis that the documents would be used for some public purpose, such as the reporting of the case – and that either the documents or the contents of them would be made more widely available in some way, so that the process was more transparent. Here though, a family member (JK) who had elected not to take part in the case, and who had rejected efforts to give him information about what had happened to his father and why by those who were involved, decided after it was all done and dusted that he wanted to see the documents after all. There were several types of document the son wanted to see :

Firstly, JK wanted to see the medical reports which had formed the basis of the decision that his father Z lacked capacity. It isn’t entirely clear why he wanted access to these documents, since he apparently didn’t want to challenge the decision his father lacked capacity, and even though the medical expert was available for cross examination, JK didn’t take that opportunity. The judge seems to have thought this was more about making a point and the son feeling like he’d ‘won’ the point, and didn’t think there was any real justification for imposing an order on the parties to the case, since they had been and continued to be willing to give the son information about his father’s condition. The judge said,

I also suspect that this application for disclosure is being brought and resisted for reasons which go beyond the legal arguments deployed before me. JK plainly feels excluded and wants the court to make orders in his favour and against AB, EF and GH which he will be able to see as a vindication of his position. However, when I am asked to make a compulsory order, an applicant must establish the grounds for such an order. In relation to the medical evidence which is sought by JK, he has not persuaded me that I should make that order. As regards the continuing relationship between JK and his family, I do not consider it is appropriate for the court to make an order, which is not otherwise justified, just for the purpose of allowing JK to claim vindication.

Secondly, JK wanted to see documents relating to the orders made about powers of attorney (concerning the management of Z’s affairs, including the family trust). Here matters were agreed and so the evidence was never tested, but the court had to formally approve the order. The judge didn’t accept this application either, largely because it would be likely to exacerbate family conflict, which had already badly affected Z, but also because the son had not really managed to articulate why he needed it. Here, the judge said the open justice principle was just not engaged at all and

Although I could order disclosure of these documents if there were strong grounds for thinking that such an order was necessary in the interests of justice, there are no such grounds and, indeed, JK’s application was not put that way.

Finally, JK said he wanted to see some documents concerning the matters that were resolved by agreement, and which didn’t require an order of the court – so he could better understand why the case was originally held in private. This was odd, because JK himself had asked for his application to be held in private, and the judge thought he understood very well why that was appropriate – because his father was vulnerable. He said,

…it is obvious why the original proceedings were in private. It was for the same reason as all parties, including JK, asked for the hearing of this application to be in private.

He then argued he wanted to see documents in order to scrutinise what happened in the original case, which the judge took to refer to scrutiny of the court’s decisions – but the judge noted the decisions the court made were really very limited and in any event they were explained in the judgment on JK’s application.

JK wanted to see documents produced by one of his siblings, it appears because JK wanted to see what had been said about him by the sibling and why he had been excluded from a committee involved in managing the trust. However, this didn’t cut much ice because it was clear the court had played no role in JK’s exclusion from the committee, which had happened before the court case had even started – and so that had nothing to do with the court or open justice either.

In short, the court declined to make any orders that JK should be provided with documents from the court case. Although the judge manages to avoid having to make findings on many matters of factual dispute concerning JK’s conduct it is very clear from the judgment that the judge was not impressed by JK’s conduct towards his father, or his application – on any basis, the judge thought, JK’s conduct were not creditable and did not reflect well upon him. In particular the court was concerned about an incident where, notwithstanding his father’s vulnerability to influence, he had attempted to secure a large sum of money from the trust for legal fees, by flying his father to Switzerland in order to authorise that payment.

It is submitted on behalf of JK that it is in Z’s interests to reduce conflict in the family. I am sure that is right and that is the wish of AB, CD, EF and GH also. However, I do not see how disclosure of a substantial number of documents to JK will serve to reduce conflict. The way to reduce conflict, so far as the subject matter of this application is concerned, is for JK to engage in a mature way with Professor Howard [the expert in old age psychiatry who the court had relied upon and who was treating Z] and if he genuinely wants to know more about the course of the earlier proceedings, for JK and his solicitors to ask Macfarlanes [solicitors] for information. It is not good enough for JK to say that he wants something and when that is not agreed by others for JK to say that the court must make an order in his favour to avoid conflict. JK can only obtain a court order in his favour if he demonstrates proper grounds for such an order.

In essence the court told JK that he should grow up and engage ‘in a mature way’ with those looking after his father’s health and affairs, and those who were responsible for running the trust, who were quite willing to provide him with information.

JK’s suggestion that he needed the report to explain the court’s decision to his father was also dismissed as being contrary to Z’s interests. He didn’t have the capacity to understand his illness any more.

This seems then to have been an application that was more about conflict between family members, and about a son who felt he had been wrongly excluded, than it ever was about open justice. JK wanted the documents for his own (unclear – but essentially private) purposes, not to further the wider interests of open justice, and although the judge quite properly gave detailed consideration to the facts before dismissing the application (particularly since JK could have been entitled to the documents if he’d asked to join the proceedings at the outset), his application after the conclusion of a case dealt with entirely in private just didn’t bring with it the sort of justification that the Dring guidelines make clear is necessary in cases where the court has not ruled on disputed matters at trial. There is a strong sense throughout the judgment that JK’s pursuit of his application had the effect or intention of making mischief for the family, that he had lost focus on the interests of his father – and that the court was reluctant to allow the process to be used to fuel the conflict or give JK any sense of righteousness that might spur him on to take further action that might cause further stress or distress to Z.

We have a small favour to ask! 


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Feature pic : Private No Entry by Brad Highham on Flickr – thanks (Creative commons)