Gopichand Parmanand Hinduja v Vinoo Srichand Hinduja & Ors

In Court of Protection proceedings held in public, the threshold for appellate interference with an evaluative decision on reporting restrictions is high, particularly where the decision is one of case management. Where anonymity is ineffective, the parties’ conduct, their care and property disputes, the family’s public profile and the court’s own handling of the case may be matters of legitimate public interest. Publicity may exceptionally serve a protected person’s best interests, despite that person’s ordinary preference for privacy. However, retrospective and unconditional publication of intimate clinical, healthcare and daily-care information is disproportionate under Article 8 where no countervailing Article 10 or Article 6 interest exists. A narrow restriction should protect that information while permitting other reporting.

The Court of Protection proceedings concerned Srichand Parmanand Hinduja, an elderly man with dementia, and applications concerning a lasting power of attorney, property and affairs, contact and welfare. Hearings were generally public but subject to a reporting restriction order preserving anonymity. On 23 August 2022 Hayden J ordered the earlier restrictions to cease retrospectively and imposed a narrower order protecting placements, clinicians and addresses: [2022] EWCOP 36. The appellant challenged the evaluative balancing of Article 8 and Article 10 rights, the treatment of publicity as beneficial, and the rejection of a half-way-house order protecting health and welfare information. The central issue was whether the order was sustainable and, if not, what reporting protection was proportionate.

The court gave a joint judgment to which Lord Justice Peter Jackson, Lord Justice Baker and Lord Justice Warby each contributed.

1. Disposition. The appeal was allowed only to a limited extent. The judge’s core decision to lift the existing anonymity and permit meaningful reporting was sustainable. The third ground succeeded because a narrow protection for intimate information should have been retained.
2. Legal framework. The combined effect of Part 4 of the Court of Protection Rules 2017 and Practice Direction 4A is ordinarily to provide for attended hearings in public with reporting restrictions. The court may tailor the arrangement to the circumstances of the individual case.
3. Appellate review and public interest. The threshold for interfering with an evaluative conclusion of this kind is high, especially in case management. The judge was entitled to assess the proceedings as a whole and to consider the parties’ conduct. He was not confined to matters established by findings of fact, since in this case the fact of allegations, rather than their truth, mattered. The family’s public profile, its association with a substantial business enterprise, disputes concerning the lasting power of attorney and care arrangements, and the court’s own conduct of the proceedings were matters of legitimate public interest. The reporting restriction had created an effective news blackout through the risk of jigsaw identification. The judge was entitled to attach significant weight to the protective effect of publicity and little weight to the protected person’s ordinary preference for privacy. That approach conformed to the approach taken by Falk J in the related Chancery proceedings: [2020] EWHC 1533 (Ch). The court declined to decide whether there is a presumptive right to publicity, observing that such labels may be unhelpful in a case-sensitive balancing exercise.
4. Half-way-house proposal. The judge was entitled to reject the proposed separation of property and affairs issues from health and welfare issues. Those matters were closely interconnected, and a complex order risked being unenforceable or chilling responsible reporting. That conclusion did not justify removing all protection for intimate information.
5. Residual protection and final order. Retrospective and unconditional publication of intimate information about the protected person’s clinical diagnosis or prognosis, healthcare and daily care would be a disproportionate breach of Article 8. No countervailing interest under Article 10 or Article 6 had been advanced. The Court of Appeal therefore determined the order itself, without remitting the matter, and added protection for that information and for comparable information concerning the protected person’s wife, subject to publication in past or future published judgments in England and Wales. Other reporting remained permitted, and the revised order was to continue until further order.

• Court of Appeal (Civil Division): Appeal allowed to a limited extent. The existing reporting restriction order was varied by retaining narrow protection for intimate clinical and care information.
• Court of Protection: Hayden J ordered the previous reporting restrictions to cease retrospectively and imposed a narrower order protecting placements, clinicians and addresses in [2022] EWCOP 36, with supplementary reasons concerning the rejected half-way-house proposal and permission to appeal in [2022] EWCOP 37.