Z, Re

Joinder in Court of Protection proceedings is not a right arising merely from a person’s family relationship, evidence, or separate financial interest. The applicant must show a sufficient interest in the matters before the court, and joinder must serve the overriding objective and enable a just and proportionate determination. A commercial interest will usually be insufficient unless the proceedings determine the applicant’s liability. Evidence relevant to Z’s capacity or best interests may be admitted without making the witness a party. Separate representation is generally justified only where there is a clear and unavoidable conflict. Different legal arguments or overlapping interests do not, without more, justify the additional hearing time and procedural burden.

The applicant, a nephew of Z and supporter of Brother X, applied to be joined as a respondent in existing Court of Protection proceedings brought by Z’s Wife. Those proceedings concerned Z’s capacity, the validity and revocation of powers of attorney, the management of his property and affairs, and welfare questions.

The applicant relied on his close relationship with Z, evidence about Z’s intentions, and a separate alleged contract or gift concerning a payment. He argued that he had a sufficient interest in Z’s capacity and best interests, and sought separate representation. The issue was whether joinder was desirable and proportionate, or whether his evidence could be considered without making him a party.

1. Application refused. The applicant was not joined as a respondent. His witness statements in the procedural application were directed to stand as evidence in the Main Proceedings, subject to review by the judge managing those proceedings.
2. The Court of Protection’s focus is Z’s capacity for autonomous action and, where capacity is lacking, Z’s best interests. The proceedings have an inquisitorial aspect. Parties and supporters may provide evidence or submissions, but no person has an entitlement to insist on being a party, being separately represented, or adducing evidence. The court must actively manage the case under the overriding objective.
3. Under the Court of Protection Rules 2017, joinder requires both a sufficient interest in the matters being considered and a conclusion that joinder is desirable for dealing with the proceedings. The court must balance the advantages and disadvantages of joinder against the factors in the overriding objective. A person’s own commercial interest will generally be insufficient, unless resolution of the proceedings would determine that person’s liability. An interest in Z’s best interests may be relevant, but it does not create a right to joinder.
4. The applicant’s evidence disclosed a serious argument that he had a sufficient interest in the best-interests issues. Nevertheless, his evidence could be tested and considered without party status or separate representation. His contract or gift claim would not be determined by the Main Proceedings, and adding that issue would introduce unnecessary prominence and contention.
5. Applying A County Council v X and Y [2010] EWCA Civ 581, separate representation is generally appropriate only in a case of clear and unavoidable conflict. The applicant and Brother X had not demonstrated such a conflict. Additional cross-examination and submissions risked delaying the determination of Z’s affairs and offered no sufficient countervailing benefit.
6. Following the approach in Re SK [2012] EWHC 1990, the question was whether the applicant would add value to the debate about Z’s best interests. On the facts, joinder was not desirable or proportionate.

Not an appeal. The judgment concerned a procedural application for joinder in existing Court of Protection proceedings. The judgment does not state any earlier appellate decision.