By David York, 8th November 2021
For many public observers in the Court of Protection, it will be a familiar experience to request access to a hearing, only to get an email response saying that the hearing has been vacated or adjourned.
This leaves members of the public wondering what actually happened to that case – and, most importantly, what happened to the person it relates to.
Sometimes a hearing is adjourned (moved to a later date). This might be because the Official Solicitor has not had time to get legal aid or receive instructions in time for the first hearing.
The difference between “vacated” and “adjourned” usually relates to the stage at which the court agrees that the hearing should take place at a later point. A hearing is “vacated” typically where a request is made in advance that the hearing should be taken out of the list and a later date given. A hearing is usually “adjourned” where issues appear either in pre-hearing discussions or at the hearing itself where it becomes apparent that no substantive issues can be resolved and the judge agrees that the hearing will need to be adjourned to be dealt with on a later date.
Hearings disappearing out of judges’ lists are not unusual. In an ideal world this would happen at very least a week before the hearing is due to take place, but there certainly are occasions where it might only be the day before the hearing or on the day of the hearing itself that it is removed from the list. Where this has happened, it is usually because an order has been agreed between the parties outside of court which has then been approved by the judge on the papers.
This applies most frequently to what are called “directions hearings”. These are hearings where the court is not being asked to make any substantive or final decisions on the case but is instead directing what needs to happen in the case (such as what evidence is required). Sometimes those hearings cannot be effective due to the fact that something may have happened that has blown any existing timetable off-course. Wherever this has happened the parties will have been able to agree what should happen next. It is an essential step in the process that whoever is representing P also agrees to those steps and ensures that whatever is being agreed is in their best interests.
Often the genesis of an application to vacate a hearing can go back days or weeks. Between hearings there will have been various forms of evidence exchanged between the parties consisting of witness statements, reports, assessments, all of which contribute towards the developing picture of the case. Sometimes the evidence that is expected can be late; sometimes it can be that it gives rise to further questions that will take some time to answer. It may be that there has been a material change in the facts of the case, or a substantial change in P’s circumstances, which can be as simple as them moving to another address or potentially new evidence appearing in respect of their mental capacity.
Alternatively, it can be that with a review of all of the evidence the parties can agree between themselves what should happen next or that the case should be concluded. It can sometimes take days for the terms of an order to be agreed between the parties as it goes through many different incarnations until it reaches a state that everyone agrees to. At that stage it is lodged with the court with an application requesting that the order be approved by the judge and the hearing be vacated.
So why the desire to avoid a hearing?
Court time is finite. The judiciary are under ever-increasing pressure. They are dealing with enormous workloads. It has not been unusual for me to see judiciary sacrificing their lunch breaks to make sure a case can be heard promptly. For the judiciary, any case that can be agreed as not requiring a hearing can potentially make space for another matter which does. In addition to this, the costs of attending a hearing can be expensive and so wherever possible the legal representatives try to ensure that the matters that do progress to a hearing are the ones where attendance before the judge is required. Those are cases where the parties cannot agree on what should happen next or where the issues are such that the judge would want to hear from everyone.
It is of course always up to a judge to make the final decision in respect of whether a hearing takes place or not and whether an order is approved. The judge always has at the forefront of their mind the best interests of P, the subject of the proceedings. There are occasions where the judge has concerns about the nature of the order sought and wishes to hear from the parties so that some explanation can be provided. In one recent case the judge was concerned that the parties were agreeing to P remaining in a placement that they were unhappy with for potentially up to twelve months. Whilst the judge ultimately approved the order, she wanted to hear what the reasons were for the order so that she could properly understand the basis for it.
The fact that the parties themselves have agreed the order does not ever mean that the judge will always approve it. There have been times where a judge has refused to approve an agreed order, has called the case in to court, and then following a hearing the order that is actually made is markedly different to the one that was submitted. For example, in one case the judge was concerned that the evidence that was due to be filed did not go far enough and directed the local authority to provide substantially more detail than had been agreed between the parties.
If the judge is satisfied with the order, it will be approved and the hearing is taken out of the list.
There is no absolute rule as to the cut-off point for making a request to vacate a hearing, it very much depends on the judge in question. Some judges are abundantly clear that they will not consider any such request if it is made within five days of the hearing. Others may consider it on the morning of the hearing. It very much depends on the judge, the facts of the case, and what is being asked for.
Applying to vacate hearings at the last minute is the last thing the parties (or the judge) ever want to see happen. The effect is always a great deal of uncertainty involving many emails between the parties and the court asking if the order has been seen by the judge. Also, if approved it can result in a gap in the list of the judge which is unlikely to be filled. But where it has happened, it is because the judge agrees that there is no need for the hearing to take place.
David York is an Apprentice Chartered Legal Executive in Public Law and Human Rights at Irwin Mitchell LLP who tweets @PhaloniaYork