A court system creaking under its own weight: Transparency challenges

by Daniel Clark, 25th August 2023

Earlier this month (on Tuesday 16 August 2023), I was given an insight into the cracks spreading through the structure of the judicial system. 

This blog highlights those cracks, so that more people are aware of the pressure facing judges and, by extension, everybody else in the court system – from regional county courts to the Royal Courts of Justice. 

From Sheffield County Court…

It all started when I asked for the link to observe a hearing before HHJ Marson, sitting remotely in Sheffield. 

I asked for the link to observe this hearing because I had some previous knowledge of this case, having observed a hearing at the end of June this year. 

It caught my eye because Celia Kitzinger had tweeted about it from the Open Justice Court of Protection Project feed when she noticed it was incorrectly listed: it appeared in the Sheffield Daily Cause List rather than the Court of Protection list. It was only by chance that she’d looked at the Sheffield Daily Cause list, and so only by chance that we even knew this hearing was taking place. Celia tells me she also reported this incorrect listing to a Deputy Manager at His Majesty’s Courts and Tribunal Service (HMCTS) who said she would address this with the people responsible.  At the time she posted this, she didn’t know I’d observed a hearing in this case before.

When hearings are listed in Court of Protection list, would-be observers are instructed to contact the regional hub. As the hearing was in the Sheffield Daily Cause List, the instruction was to contact the Sheffield court directly. 

After some consideration, I decided to email the Sheffield court but copy in in the regional hub which, as a result of the last hearing (which had been listed correctly), I knew was the Leeds Hub. I cannot be sure which email resulted in a response because the response for my email (received at 09:45) came from the Sheffield Court of Protection email address. 

I was advised my details had been passed to the Judge and the Clerk and that they would join me to the hearing. The Transparency Order was also (unusually) attached. The hearing was listed to start at 10:30 but I still had not received the link at 10:40. I therefore sent a (polite) email asking whether there was some delay to the hearing getting started. 

At 10:50, having received no response, I rang the Sheffield Court directly, and the person I spoke to advised me to email them again so that my request could be sent to Sheffield’s Court of Protection team. I advised this was who I’d been in contact with so far but the person I spoke to advised me that this was the best option.  

At 11:11, I received a message from the judge (via the administration officer who sent me the Transparency Order) explaining that, ‘Circuit Judges in Sheffield are block listed at 10.30am. Just because they appear in the list at 10:30am does not mean that will be heard at 10.30am, I may not reach this case until this afternoon, I have too many other equally important cases to deal with at the same time.’ 

My first reaction was, if I’m honest, of frustration. I felt that the tone of the email was somewhat irritable, assuming that I should have some sort of knowledge about the way lists in Sheffield are composed. I also thought that it would have surely been possible for somebody I’d emailed or spoken to, to have made me aware that this hearing would not necessarily commence at 10:30am. 

I think it is also worth pointing out that the hearing at the end of June was also listed to start at 10:30am. On that occasion, I received the Transparency Order at 09:52, and the link at 09:58. In my opinion, it wasn’t unreasonable to except that would happen again. 

However, the tone of emails is very hard to judge. I’ve come across as short and irritable in email (I know because I’ve been told) when in reality I simply wanted to ensure information was passed on to somebody in a timely manner, when I didn’t have much time. 

In that light, I think this whole experience really demonstrates the way in which judges are expected to handle an increasingly high volume of hearings – as well as the demands of transparency, as exemplified by requests from would-be observers like me. We know about the volume of hearings: when we share listings on Twitter (aka X), we often have occasion to point out that some judges have multiple hearings listed for the same time, and so that inevitably some will start later than the listed time.

HHJ Marson is, of course, right to say that all cases are of equal importance. But every case has a diverse set of people involved, and every single one of them want to know about their own important case. 

I later found out that this case was vacated with consent orders in place. 

…to the Royal Courts of Justice

There was a hearing before Mr Justice Keehan that was also listed to begin at 10:30am that same day (Tuesday 16 August 2023).  I learnt from another observer that the start of that hearing had been delayed because the judge was involved with another matter. I therefore requested, and received, the link for this hearing, and joined the virtual waiting room. 

It was hard not to miss some similarities. Two cases, on the same day, were listed to start at the same time, only for the judge to be engaged in another matter, and the start of the hearing delayed. 

I knew, though I couldn’t see them, that also in the waiting room there must be lawyers waiting; lawyers who also have many other clients to make contact with, and other hearings to plan for. I thought there may well be professionals – a social worker, as it turned out – who were also anxiously waiting for the hearing to start, their diary already marked out as ‘do not disturb’ and facing the possibility of extending that period of not being available. 

And finally, I thought there may well be anxious family members, maybe even the protected party (P) herself waiting for the hearing to start. Although I could get on with other things, occasionally re-opening the tab to check I hadn’t missed anything, I highly doubted that they could switch between tabs with such comfort. For the hearing about you or your loved one to be delayed must be unbearable. 

Of course, this isn’t the judge’s fault at all.  He was apologetic (both at the start and end of the hearing) for the delay. In fact, it struck me again that this is an almost impossible situation for a judge to find themselves in: having to move with urgency from one hearing to the next, knowing full well how important each case is but inevitably having to keep somebody waiting.

Delay, delay, delay…

Both of these cases were, of course, dealt with by a judge on the day they were meant to be heard. However, it goes without saying that given the sheer volume of outstanding cases, there is delay elsewhere in the system too. 

It is not just public hearings that Court of Protection judges deal with. There are hearings that are private and others that are ‘closed’ (i.e. a party is being excluded, though all such hearings should now be listed).  There are applications for deputyship that must be approved by a judge, and applications for the deprivation of liberty where P is not living in a care home or hospital that must also be approved by a judge. 

The increasing number of people requiring a judge’s attention puts incredible strain on the judicial system: a system that is creaking under its own weight. Judges are expected to juggle an ever-increasing workload, as are the lawyers involved. Professionals feel the shockwaves of delays in the courts, and family members become even more anxious to see their loved one’s situation resolved.

And when we look past the judges and the barristers and the solicitors and the social workers and the nurses and the doctors and the anxious mother or worried uncle, we see P, the person at the centre of the case. When workloads are stretched and schedules would benefit from an extra couple of hours in the day, it is ultimately P who is left in limbo.  

Our focus, as the core team running the Open Justice Court of Protection Project, is of course on open justice and transparency.  We recognise the challenges the court faces in ensuring transparency – as well as everything else! –  in this context. It is to the credit of the Court of Protection that it continues to maintain its commitment to transparency as a fundamental principle, despite (or maybe because of) the pressures the system is under.  Our role is – and continues to be –  to support that judicial commitment to transparency.

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is  a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.