P v Independent Print Ltd. & Ors

Under the Court of Protection Rules 2007, hearings remain private as a general rule. Media attendance or publication requires good reason, followed by a fact-sensitive balance of all relevant considerations, including privacy and freedom of expression. Public interest in the Court of Protection’s work and continuing interest following earlier publicity may constitute good reason, but each case depends on its individual merits. A person’s welfare and privacy are important factors, but the best-interests principle in section 1(5) of the Mental Capacity Act 2005 does not govern a decision about the administration of the court’s process. On appeal, such a balancing decision should not be disturbed unless it is flawed in principle or plainly outside the range reasonably open to the judge.

P lacked capacity and proceedings in the Court of Protection concerned his residence, care and contact with his adoptive mother. Earlier proceedings had included an open-court judgment reported as [2008] EWHC 1403 (Fam). At a review hearing on 8 December 2010, Independent Print Ltd applied at short notice for permission to attend and report specified judgments. Hedley J permitted attendance and authorised limited reporting, while maintaining anonymity and imposing safeguards against P being told about the reporting.

P, through the Official Solicitor, appealed. The issues were procedural fairness, whether there was good reason for the orders, the balance between privacy and freedom of expression, and whether P’s best interests were paramount.

1. Appeal dismissed. The Court upheld Hedley J’s orders permitting a representative of Independent Print Ltd to attend the relevant hearings and authorising limited reporting, subject to continuing anonymity and safeguards.
2. The court adopted the two-stage approach stated in Independent News & Media Ltd v A [2010] EWCA Civ 343, [2010] 1 W.L.R. 2262. First, the applicant must show good reason for an order under rules 90 to 92. Secondly, the court must undertake a fact-specific balancing exercise addressing all relevant considerations. The functioning of the Court of Protection, continuing public interest following earlier publication, and the value of informed reporting could together establish good reason. The common occurrence of similar welfare disputes did not create a general entitlement to media access.
3. The Independent had failed to comply properly with the application and service requirements. Nevertheless, the review hearing raised important issues, including possible implications under article 5 of the ECHR. An adjournment would have defeated the application and caused further cost and delay. Hedley J was entitled to determine the application immediately. Fresh clinical evidence admitted on appeal did not demonstrate that attendance itself would harm P, and the anonymity and non-disclosure safeguards adequately reduced the identified risks.
4. The balance engaged P’s article 8 rights and the media’s article 10 rights. Section 12(4) of the Human Rights Act 1998 required particular regard to freedom of expression. The appellate approach was governed by Brown v Associated Newspapers Ltd [2007] EWCA Civ 295, [2008] Q.B. 103: intervention was unjustified absent an error of principle, failure to consider a material matter, reliance on an irrelevant matter, or a plainly wrong conclusion outside the generous ambit of reasonable disagreement.
5. Section 1(5) of the Mental Capacity Act 2005 did not govern or dominate the decision. Permission for media attendance and reporting concerned the administration of the court’s process, rather than an act or decision made for P. P’s welfare was not paramount, although its likely impact remained a material factor. The Court referred to Scott v Scott [1930] A.C. 417, In Re: X (A Minor) (Wardship: Jurisdiction) [1975] Fam 47 and R v Central Independent Television Plc [1994] Fam 192 in support of the limits on suppressing true reporting solely because it may be thought contrary to a child’s or patient’s interests.
6. The Court declined to prescribe general practice for media applications under rules 90 to 93, leaving the development of practice to the President and judges of the Family Division.

1. Court of Appeal (Civil Division) heard the appeal urgently on 1 February 2011 and dismissed it, giving reasons on 4 July 2011.
2. Court of Protection Hedley J permitted Independent Print Ltd to attend the review and authorised specified reporting, while maintaining anonymity and imposing protective directions. Earlier proceedings included an open-court judgment reported as [2008] EWHC 1403 (Fam).