How not to do open justice in the Court of Appeal

By Celia Kitzinger, 10th March 2021

Editorial Note: The judgment has now been published (click here). It includes this (para. 23): “Regrettably, however, and in breach of the requirements set out in para 33 of PD52C, the parties’ open skeletons were not all formulated in a way they considered suitable for disclosure to court reporters. As a result, the court was unable immediately to meet requests by two observers to provide the skeletons, and it was more difficult for those observers to follow the arguments during the hearing. In future, this is a point which should be considered by the parties and the court during preparation of an appeal.“

Imagine that your teenage daughter is in hospital with life-threatening anorexia. 

The local authority decides that you, her mother, have a negative impact on your daughter and starts legal proceedings.

The case wends its way to court and is heard before Mr Justice Hayden in the Court of Protection in November 2020.  

He orders that – despite her consistently expressed strong wish to return to live with you in the family home – your daughter must move to residential accommodation where her contact with you will be limited to one supervised visit each week.  

Now imagine that this decision was made in private – after members of the public who sought to attend were turned away. (I know. I was one of them.)

Imagine that the judgment has never been published.

Imagine, further, that you, her mother, were excluded from the decision-making process – because the judge decided not only to withhold information from you but also (without any party applying for this) to remove you as a party.

It sounds like a nightmare.  It sounds draconian.  It sounds like the “secret court” at its worst.  

No wonder the case is now in the Court of Appeal, where P’s mother is appealing the decision before Lord Justice Peter Jackson, Lord Justice Baker, and Lord Justice Warby.

This is as much as I was able to pick up from the Court of Appeal hearing on 9th March 2021 about a decision in the Court of Protection by Mr Justice Hayden on 3^rd November 2020.  

I don’t know much more than this – and what I think I “know” may not even be accurate – because I was denied access (at least for the time being) to skeleton arguments and other documents relating to the case.  So too was the only journalist in attendance, Brian Farmer.

Skeleton arguments

Each party normally submits a skeleton argument (or “position statement”) to the court before the hearing. This is a document setting out the party’s position, a list of identified issues, the essential facts of the case, and the salient points of legal argument, including the text of key statues and case law.  It states what the party wants the court to decide and what the legal basis for that decision would be.  The skeleton argument has to be filed and exchanged with other parties before a hearing, and is the foundation for the oral argument in court.

Skeleton arguments used not to exist as formal documents because, historically, advocacy relied on oral argument alone.  They arrived on the scene relatively recently with the Woolf Reforms and the Civil Procedure Rules in 1998.  Today, they’re a time-saving device to avoid lengthy oral presentations.

This was made very obvious at the beginning of the hearing when Lord Peter Jackson announced briskly to the advocates: “We have read everything. You don’t have to take us through a detailed chronology”.  Hearing this, my heart sank: it meant the court would rely on information culled from the skeletons (which I didn’t have) and that oral argument would be limited.  (It’s always much easier for observers to follow a case when a judge admits to not having read all the documentation!) There’s clearly a case for saying that skeleton arguments should normally be available automatically to observers in a public hearing and provided to us by counsel in a suitable format.  I’ve received them previously, without hassle, in Court of Appeal hearings.

Knowing the ‘person-centred’ nature of Hayden J’s decision-making, I’m sure there’s a lot more to the Court of Protection decision he made than I’ve managed to piece together here. Without the skeleton arguments, I simply don’t have the information I need to understand either the process or the outcome, and I’m willing to suspend forming my own views about the matter pending further information about the facts and law underpinning the case.  

But what alarms me is that, as a member of the public refused access to the skeleton arguments, this was the only information available to me after the first two hours of the Court of Appeal hearing.  If I’d not been a seasoned observer of Court of Protection hearings, this experience would have reinforced every prejudice and stereotype any journalist has ever expressed about “the secret court” and its draconian powers.

The hearing

At the Court of Appeal, the applicant (P’s mother) was represented by Tim Nesbitt QC (with Alex Cisneros).  The respondents were the local authority represented by Katherine Barnes; P (via the Official Solicitor) represented by Fiona Paterson; and the Mental Health Trust represented by Nicola Greaney.  

My understanding of Hayden J’s decision is based largely on the summary provided by Tim Nesbitt QC who provided a brief introduction to the case in the Court of Appeal.   He said that the “essence of his case” was that “the procedure adopted in the 3^rd November hearing did not allow the appellant sufficient involvement in the decision-making process”. He said, “whatever caused the court to act as it did, even if it justified some degree of exclusion, it could not justify the wholescale exclusion of my client from participation in the procedure.”

It turned out that Tim Nesbitt QC was himself at a disadvantage in presenting his client’s case since there is “closed material” that he hasn’t seen: I understood that he would be granted access to that material in a “closed session” (which press and public would not be able to attend) that afternoon. 

Lord Justice Baker asked counsel repeatedly: “is there any case in which a party has been discharged in this way, in any proceedings? Without notice, without evidence, without reasons?”  

I couldn’t really follow the answers because counsel answered with reference to case law I didn’t know, cited in paragraphs I couldn’t see, in skeleton arguments I wasn’t allowed to have. 

I regularly google case law (and statute) during hearings – I don’t know enough law to be able to follow the reasoning otherwise.  But it’s hard to google cases without having their full names and neutral citation numbers.  I eventually found a case I heard initially as “Eva’s of Germany” (it’s Evvers v Germany!) but I can’t  find another case cited by Nicola Greaney  that I hear as “the Toother-Gas Decision” and it remains a mystery to me.

I did manage to find) Cobb concerning KK  and Z v Finland which are pertinent to Tim Nestbitt QC’s argument that excluding a party from making submissions, from filing evidence, from knowing an order is being made should only be done “when the situation imperatively demands it” and it is “strictly necessary”. (“What does ‘strictly’ add to ‘necessary’?” asks Baker LJ.) But I can’t find Hedley in M or Lady Hale In the matter of A, or Munby in Re B (apparently referred to in paragraph 36 of the skeleton).  

What’s so frustrating about all this is that these arguments go to the heart of open justice.  They are (I think) about what constitutes a “fair trial” (Article 6) and about the extent to which the state can interfere in private and family life (Article 8) – key human rights concerns.  They address issues of the right to privacy, the protection of personal data, and the limits of disclosure.  These are matters of fundamental public interest.  

Journalists and the public need to be able to scrutinise the ways these decisions are made and report on that to others.  But without these skeleton arguments, I found the oral presentations and discussion impenetrable.

A failure of open justice

At the beginning of the morning session, I asked for the skeleton arguments – via emails to counsel and to the clerk.  The judges declined access on the grounds that there was insufficient “head-space” to consider whether or not I should be sent them while the substantive business of the appeal was in progress.  The matter would, said Lord Peter Jackson, be considered during the lunch break when it would be assessed “whether the documents are in a condition where they can be disclosed”. 

I gather that there were in fact two skeleton arguments for each party – one for the “open” court and one for the “closed” session but it seemed that the “open” skeletons had not been redacted appropriately and could not be sent out until after the hearing.  I have still not received them.  I do not understand why the court seemed unprepared for requests for  “open” skeletons in “open” court.  Shouldn’t they have been redacted ready for the public and press in advance?  It’s almost as though they didn’t expect observers to be present in open court.

Litigation is a public process and this Court of Appeal judgment was (supposedly) held in open court.  Certainly they opened the virtual court door and let me enter.  But without access to key documents referred to at the hearing, I might as well not have been there.  I wasn’t able to follow, or scrutinise, the court decision-making process. 

I did not aspire to see the “closed” materials or to know the names and personal details of P and her family. The requirements of open justice were more modest. I simply wanted enough information to understand and assess for myself what the Court of Protection judgment said and what the reasoning was behind the arguments for and against appealing it.  This could surely have been accomplished by sending me the redacted skeleton arguments in a timely fashion at the beginning of the hearing.  Without them, I was lost.

After two hours, I gave up and left the hearing.  

I’m left unsure whether this was an administrative failing (counsel should have prepared anonymised/redacted skeletons ready to hand out and the judges should have told them so), or whether, in fact, the sensitivities of the case were such that we should have been told upfront that this was a “private” hearing, and asked to leave.

My reading of the situation is that perhaps the court had simply assumed that press and public would not be there – a historical legacy of nobody attending hearings – so hadn’t taken the time to address issues of transparency, and then felt ambushed by me and a journalist asking inconvenient questions. 

Lord Justice Jackson did say at one point that if we had requested skeletons earlier, then it might have been possible to release them during the course of the hearing. But I am not sure how it would have been possible for me to make a request any earlier than I did.  The hearing was only listed after 4pm the previous afternoon – and I wasn’t even sure it was the hearing I was looking for, since it was listed as an appeal from the Family Court, not the Court of Protection.  My first request for the skeletons was sent to counsel at 10.18am (for a hearing due to start at 10.30am). This was as soon as I received joining instructions and had logged on to the video-platform and could see who counsel were, and hence to whom I could address such a request. Perhaps the court should consider adding to the listings an email address from which the press and public can request skeletons in a timely fashion? 

In my view this was a failure of open justice.

Celia Kitzinger is co-founder (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

Photo by Ed Hinchliffe on Unsplash