A v Independent News & Media Ltd & Ors

Court of Protection hearings are normally private, reflecting the personal autonomy and privacy of adults who lack capacity. An order permitting attendance or publication under rules 90–92 requires a two-stage decision. The court must first find good reason and must then balance all relevant considerations in deciding whether to grant the particular authorisation.

The media’s article 10 rights may be engaged when it applies to attend proceedings, particularly where the information is already public or its dissemination serves a genuine public interest. The court must also consider specifically the article 8 rights of anyone whose private life may be affected. Limited media attendance does not itself authorise publication.

A severely disabled adult lacked capacity to manage his welfare, property or affairs. His parents and sister applied to the Court of Protection for appointment as his deputies. The proceedings would examine intensely personal medical, care, financial and professional matters concerning an internationally recognised musician.

Hedley J, in [2009] EWHC 2858 (Fam), authorised a limited number of media representatives to attend the otherwise private hearing. Publication would require further judicial authorisation. The Official Solicitor appealed on the adult’s behalf, contending that no good reason justified media attendance. The media challenged the judge’s conclusion that article 10 became engaged only after good reason had been established.

The central issues were how the powers in rules 90–93 of the Court of Protection Rules should be exercised and when the media’s article 10 rights became engaged.

1. Appeal dismissed. Hedley J had been entitled to permit a limited number of media representatives to attend. The order did not authorise publication of information obtained at the hearing, for which a further application would be required.

2. The legislative scheme begins from the privacy of an incapacitated adult’s affairs. Rule 90 therefore provides that Court of Protection hearings should normally be private. This reflects both personal autonomy and a recognised common law exception to open justice.

3. An order under rules 90–92 requires a two-stage process. The court must first decide whether there is good reason for the order. If there is, it must balance all relevant considerations and decide whether the particular authorisation should be granted. Good reason does not compel an order because stronger countervailing reasons may justify refusal. A full public hearing will ordinarily require more compelling justification than an anonymised judgment or limited attendance.

4. There was good reason in this unusual case. Information concerning the adult’s remarkable life was already public, and both that information and public understanding of the new Court of Protection created a legitimate public interest. Limited attendance would allow the media to identify matters of legitimate interest and make informed submissions about publication. A judge should not tailor a judgment to assumed media interests.

5. The appellate court could interfere with this evaluative decision only for an error of principle, a plainly wrong conclusion or a conclusion outside the range reasonably open to the judge. Hedley J’s careful decision contained no such error.

6. The privacy scheme substantially encompasses article 8, but the court should specifically consider the article 8 rights of anyone who may be affected by an order. Article 10 similarly gives focused protection to relevant public-interest considerations.

7. Contrary to Hedley J’s view, article 10 was engaged when the media made its application. Much of the relevant information was already public. More broadly, the usual restriction on using article 10 to obtain unavailable information may have less force where the media seeks information arising in judicial proceedings for dissemination in the public interest. This difference did not undermine the order; it could only have reinforced the finding of good reason.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the limited authorisation for media attendance, while differing from the judge on when article 10 was engaged: [2010] EWCA Civ 343.
2. High Court, Family Division: Hedley J authorised a limited number of media representatives to attend the otherwise private Court of Protection hearing. Any publication required further authorisation: [2009] EWHC 2858 (Fam).