The Civil and Family Listing Manager at the Leeds Combined Court Centre has offered a “sincere apology” after “failings by this office did indeed deprive you of the opportunity to observe the hearing”.
The hearing in question was before Court of Protection judge Mr Justice Poole and was part of a long running covert medication case.
In short, a series of secret court hearings had taken place without the knowledge of family members, and indeed members of the public. Running alongside these closed hearings were a parallel set of public hearings in which material facts, mentioned in the closed proceedings, were not said in open court.
Bloggers who had attended the ‘open proceedings’ and reported what they heard “had inadvertently misled their readers”, concluded Mr Justice Poole in a subsequent judgment dealing with reporting restrictions. Adding “There have already been reports of this case which were based on only partial information – through no fault of the authors – and I am anxious to avoid any repetition”.
These issues of transparency lead to media coverage on Radio 4’s Law In Action by Joshua Rozenberg ‘Secrecy in the Court of Protection?‘, and extensive coverage by the Open Justice Court of Protection project both here and here.
The circumstances of this case lead to new guidance being issued by the then Vice-President of the Court of Protection on covert hearings.
The March hearing
As someone who had attended all three days of the hearing in-person at the Royal Courts of Justice in September 2022 (and indeed reported on the first day) I was keen to observe future developments in this matter.
It was with some disappointment that I ended up missing a hearing which occurred on the morning of March 13th 2023. The reason – it wasn’t listed properly.
A series of tweets by Celia Kitzinger, co-founder of the Open Justice Court of Protection Project, complained of “Another listing failure today … If only HMCTS had listed this hearing correctly, we’d have put it on our “Featured Hearings” page … and YOU might have been able to watch it too.”
Celia has since blogged about the hearing ‘Unplanned disclosure and (still) no agreed ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44 continues‘.
So frustrated that I had been denied the opportunity to remotely attend I took the liberty to send a complaint to the Leeds Combined Court Centre where the hearing had been.
My complaint was aptly summed-up by the Civil and Family listing manager: “You complain that the hearing in the above proceedings listed on 13 March 2023 was not publicised appropriately, thereby depriving you of the opportunity to observe that hearing. You seek an explanation for this and confirmation of what the court intends to do to prevent future recurrence. You have also asked that a transcript of the hearing on 13 March 2023 be provided…”
The manager went on to explain what caused the issue:
“As you are aware, there is a dedicated Court of Protection (CoP) cause list on the Courtserve website. It enables potential observers to easily identify hearings that are listed at courts within the respective areas of the regional hubs outside of London. In order to achieve this, staff at each court site scrutinize the diaries of their nominated CoP Judges to identify those hearings from within their lists. That information is then collated into a daily list of CoP hearings that is sent to Courtserve alongside each site’s general lists.
This particular case is administered by the Newcastle hub. The hearing on 13 March 2023 was listed in Leeds as the Judge, Mr Justice Poole, is currently sitting in this city. The staff member at the Leeds hub responsible for collating the CoP list was unaware of the hearing and failed to examine the appropriate High Court diary resulting in it not being included in that collation.
Consequently, whilst the hearing did appear on the public list for Leeds, it did not appear in a place on Courtserve where it could be as easily found as it should have been.
That omission could and should have been avoided as there were other members of the listing team who were aware of the hearing (hence its inclusion in the general Leeds list). There were Opportunities missed that might have prevented it and better communication within the team would have enabled those to have been taken.
That said, I am entirely satisfied the omission was the result of innocent human error. I find no evidence of any wilful intent to hide the hearing on 13 March 2023, nor to deliberately interfere with the rights of individuals who would be disadvantaged by that omission.”
I pause to note that I agree with the conclusion of the last paragraph. It is disappointing that in a matter where transparency has been a sensitive issue a degree of care appears not to have been taken.
“I do however fully accept that failings by this office did indeed deprive you of the opportunity to observe the hearing, and for that I offer my sincere apology.
The listing team takes its responsibilities in terms of customer service and the principles of open justice very seriously and is disappointed by this incident. We will seek to prevent recurrence in future by ensuring the diaries of any visiting High Court Judges are examined each week as a matter of routine. We have also discussed the need for clear and thorough communication between individuals within the team.
I turn now to your request for a transcript of the hearing to be provided at public expense. As such a decision may only be made by the Judge, I took the liberty of outlining the circumstances surrounding your complaint to Mr Justice Poole and sought his opinion. As well as answering my query regarding your transcript request, his Lordship also provided me with some detail of his recollection of the morning of 13 March and confirmed that he was happy for me to impart the same to you:
“This Court of Protection case has attracted interest and so, when the parties were ready for the remote hearing before me on 13 March 2023 at 0945, I was surprised that no observers had asked to be provided with a link.
For the avoidance of doubt, this was not a Family Court case to which the Transparency Reporting Pilot applied, but a COP case being heard in public subject to a Transparency Order.
I paused the start of the hearing and, doing a quick internet search, found the case listed on Court Serve for 10.30 am —as I recall the hearing appeared in the general list for Leeds, but not under the separate Court of Protection tab on Court Serve.
In the circumstances I asked my clerk to inform Prof Kitzinger that the hearing was taking place because I was aware that she had made representations about the case, and about the question of closed proceedings more generally, to the then Vice President of the Court of Protection when he considered guidance on closed hearings following my earlier judgment in this case.
I delayed the start of the hearing until 10.30 am so that anyone who had seen the case on the public list could join to observe at that time. Prof Kitzinger did ask for a link and she observed the hearing. I am afraid that at the time I did not recall that Mr Cloake had also previously observed hearings in the case and I did not ask my clerk to contact him directly.
This was a short hearing at which I gave what were largely agreed directions. I also refused to extend time for B to seek permission to appeal an order of HHJ Moir from 2020. I agreed to B’s Counsel request for a transcript of my short ruling on that application, to be paid for out of public funds. I have not yet received that transcript for my approval.
When it is available, I would be happy to ask B’s representatives to forward a copy to Mr Cloake. He should be provided, now, with a copy of the Transparency Order (Mr [redacted] will have a copy of that order which can be forwarded to Mr Cloake) although he will have a copy of the order from when he last observed the proceedings in 2022.
I have drawn the attention of the regional lead COP judge, DJ Temple, and the VP of the COP, Mrs Justice Theis, to the fact that although the case was listed, it did not appear on Court Serve under the COP tab, and that in my view it would be desirable for all COP cases listed before High Court Judges sitting as tier 3 judges in the COP on circuit, to appear under that tab or otherwise to be readily searchable on Court Serve.
Mr Cloake can be advised that the next hearing date in the case is 20 June 2023 currently due to be in person at Newcastle.”
Together with this response to your complaint you will find, attached to the email, a copy of the Transparency Order as directed by the Judge.
Once again, I apologise for this oversight and the inconvenience it has caused you which does not reflect the high standard of service that you should expect to receive from HMCTS.”
Comments
It’s reassuring to hear that steps will be taken, although there’s a certain feeling of de-ja-vu as I’ve heard similar commitments before.
This also raises the issue of just how easy it is to follow a case when it bounces across multiple court centres – jumping from the RCJ in London, to Leeds, and then to Newcastle.
A cursory glance at the ‘Civil and Family’ list on Courtserve for April 3rd 2023 has nearly 300 individual court pages that would need to be visited in order to see if a particular hearing is listed. There’s currently no functionality for the public to perform a search.
This is why it’s so important to have CoP hearings filtered into the dedicated ‘Court of Protection’ section – something that did not happen in this case.
Open Justice should not rely upon an attentive Judge noticing the absence of observers. I’m not sure we would have known that the March hearing had even taken place had it not been for the Judge’s diligent effort.
Mouse in the Court 
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