Lawyers acting for the mother of an incapacitated man who was subject to a series of hearings in the Court of Protection have told three senior judges that Mr Justice Poole made a “serious procedural irregularity” by allowing an observer access to their written submissions.
In May 2024 the man originally at the centre of these proceedings at the lower court suffered a brain injury. He entered “a prolonged disorder of consciousness” and following a decision to withdraw treatment in June 2025 he sadly died on 8th July 2025.
One of the issues before the court of protection was whether a so-called living will was valid, having been supplied by the man’s fiancé following the incident. Accusations were made that the document was a forgery.
Documents supplied, along with the living will, were said to include “highly sensitive personal information, which included a number of serious allegations made … about his family members“.
In preparation for a legal challenge to the authenticity of these documents “a substantial amount of evidence was therefore filed … and significant portions of such evidence were extracted and re-produced within the position statements filed for the hearings“.
Ultimately, the challenge was withdrawn and “this material was not in fact pertinent to the decision the court eventually made“.
[The court also ordered that the so-called transparency order should cease to have effect and the mouseinthecourt reported on a hearing on this topic in September 2025 – ‘Let me talk about my partners death’ – Court of Protection told]
Celia Kitzinger, a co-director of the Open Justice Court of Protection Project had also taken an interest in this case with written submissions, by Emma Sutton KC, describing how she has published over 600 blog posts on the work of the Court of Protection since the project was founded in 2020.
As part of her interest in the case Celia made an application to the court asking to be provided with certain documents known as position statements. The decision of the judge, Mr Justice Poole, was made in writing and has been published.
At paragraph 36 of his judgment, and key to the day-long-hearing before the Court of Appeal today, Poole J said that “there is presently no guidance on the provision of position statements to observers of Court of Protection hearings” and proceeds to set out what he believed the procedure that should be adopted.
Having followed his own guidance the judge ordered that Celia should be provided with the position statements, said to contain “highly sensitive personal information“.
Hence the appeal today – with the written submissions of Alex Ruck Keene KC (Hon), on behalf of the mother, decrying that something of an “urban myth” had developed about the application of the ‘open justice’ principle to Court of Protection hearings.
Flowing from that urban myth, and exemplified by this case, flows the proposition that non-parties have rights to access hearings (and materials relevant to hearings) before the Court of Protection, exercisable upon request, and for their benefit
Written submissions of Alex Ruck Keene KC (Hon)
The somewhat astonishing proposition put forward was “that the starting point is that the open justice principle simply does not apply to proceedings before the Court of Protection“.
This “bold and ambitious” argument had been resisted in written submissions made on behalf of Celia Kitzinger which relied on the 2019 case of Cape v Dring which states “The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state“.
This argument seemed to have been quickly accepted by Lord Justice Peter Jackson, who said that it would be “more helpful to consider balance, and the approach to the balance [between openness and privacy], that is going to arise in these cases“.
The court also mooted that discussions of what provision for non-parties to access position statements could be “front-loaded” into initial discussions when making the initial transparency order.
A lack of clarity in the existing rules, resulting in what was described as “the making of inevitably clunky orders in every case“, may have caused Poole J to set out his guidance “to seek to short-circuit some of these burdens“.
The difficulty with providing the position statements was alluded to in the appellants written submissions:
It is submitted that there is a difference between oral submissions (as may be taken down by observers) and written documents, which may recite lengthy extracts of otherwise private source evidence. Depending on the events of the day, written submissions prepared in advance may or not end up needing to be made or spoken to, as happened in this case. Documents are easily reproducible and capable of being disseminated widely and informally, including online.
The concern about a blanket provision of position statements was that information could be requested by not just accredited reporters but also “bloggers, tourists, voyeurs, or those with a connection with parties with malicious motives“, it was claimed.
It was submitted that just because proceedings may be of interest to the public does not necessarily mean there is a public interest in the underlying written material being disclosed. It was said that “most of what was set out in the position statements filed for the hearing on 30 June 2025 was not ventilated in open court…” and the subsequent release of that material to Celia Kitzinger by the judge caused “significant distress and anxiety to the family“.
“Open justice is not the same as saying open sesame”, said Mr Keene in oral submissions, who said the Court of Appeal should be cautious about descending into the detail of the processed required, as opposed to giving guidance at the level of principle. Keene said this was a topic that the CoP Rule Committee might wish to consider.
In the mind of this humble blogger Mr Keene’s suggestion that it could only take a matter of months for this guidance to be produced by the rule committee was overly ambitious. The Civil Procedure Rule committee has been dilly-dallying since 2019 following Lady Hale’s request they adopt the principles set out in Cape v Dring.
In conclusion the appellant said the order of Poole J should be quashed, and any copies of the position statements already sent out should be destroyed. The court should also record that “the approach set down by Poole J as to the handling of future requests by observers for position statements is not to be followed“.
Resisting the appeal Emma Sutton KC, assisted by Gemma McNeil Walsh, appearing pro-bono on behalf of Celia Kitzinger, said her clients position was that “there can be no question that the principle of open justice applies to proceedings before the Court of Protection“.
A number of references to various authorities over the years were provided in support of this proposition.
It was conceded that “we do agree the guidance went astray” and suggestions were put forward to make the guidance compatible with rule 5.9 of the CoP rules.
It was submitted that Poole J correctly carried out the balancing exercise between the article 8 privacy rights vs the article 10 right to freedom of expression (which includes receiving & imparting information) when he exercised his discretion in allow disclosure of the documents.
Ms Sutton invited the court to confirm that the decision of the judge to allow disclosure was correct, and should be upheld. And that subject to fine-tuning the guidance to take into account rule 5.9, that the guidance too should be confirmed as correct.
Appearing on behalf of the official solicitor Ms Katie Scott confirmed to the court that her client was applying to be joined to the appeal as an intervenor.
Ms Scott said the official solicitor wanted to make submissions on her own behalf, and not as someone who previously acted as the litigation friend of the man at the centre of the proceedings in the lower court.
In written submissions we were told that the OS “does not advance a case as to whether or not the decision under appeal was wrong and/or the appeal should succeed“, instead she wished to support the submissions made by the appellant with regard to “the difficulties that practitioners experience as a result of the current practice of observers making requests for position statements at the start of or even during hearings“.
Ms Scott echoed concerns that the court “has almost no ability to control the onward disclosure of such information” when documents are sent out.
In oral submissions Ms Scott said the emphasis of her submissions is to ensure that the parties, and those acting as a litigation friend, have sufficient time to respond to any application brought.
Ms Scott also mentioned the significant impact that observers can have on those who have a close connection to the case citing one example of someone “making a serious attempt on their life following the reading of reports of their COP hearing in blogs authored by observers at that hearing“.
Ms Scott said she was hesitant about any guidance which may result in position statements being “watered down” in anticipation that they would be required to be disclosed.
Were position statements to be redacted before being sent out then it was submitted the burden of doing so should not fall upon the person at the centre of the case. This may mean that “the court must take responsibility for both carrying out the appropriate redactions to the positions statement, and actually providing a copy of the position statement to the observers(s)“. Or that “the observer must pay the reasonable costs of P’s litigation friend undertaking this exercise“.
The judges indicated they would reserve their judgment, which would be handed down in due course.
Opinion
This case shows the strong tension that exists between the aspiration and theory that hearings should be open to the scrutiny and understanding of the public, and the practical realities of time pressures and the fact that Court of Protection hearings often deal with very sensitive information.
One factor about this case did trouble me, and that is the status in this case of Celia Kitzinger and the Open Justice Court of Protection Project. It was said that the project had five members, “none of whom are lawyers or journalists“.
I would wager that Celia Kitzinger has written more about the work of the Court of Protection, in a journalistic and public watchdog capacity, than perhaps any other person in the United Kingdom. To suggest that she should not be considered a journalist because she does not possess a press card – the only qualification for which is a financial element – is a notion that I find difficult to justify.
In the Court of Appeal (Civil Division)
Before: Lord Justice Peter Jackson, Lord Justice Coulson and Lord Justice Cobb
Courtroom 63, RCJ. 25th March 2026.
Mouse in the Court 