Pre-Hearing Draft Orders: Procedure, Not Pressure

By David York, 7th November 2025

Those familiar with Court of Protection hearings may have heard judges mention at the beginning of a hearing that they have already received a draft of the order being sought. This can be either an order that has been prepared by a single party and sets out what order they would be seeking the court to make at the hearing and can be used as a starting point for discussion; or in the alternative it can be an order that has been prepared jointly between the parties and represents their agreed position. Occasionally if an agreed order is lodged in enough time before the hearing, the judge may agree that the hearing is no longer be required, and this is one of the reasons why hearings are sometimes vacated (see: Last-minute vacated hearings in the Court of Protection).

Orders prepared by a single party can create the impression that one party is pre-empting the judge’s decision before the case is heard, potentially undermining the right to a fair trial, not only for P but for others involved. There may also be a perception that this step is unfair to others who are involved, particularly where this includes lay parties who are themselves not legally represented.

Unlike adversarial settings such as criminal proceedings where parties have opposing goals, the Court of Protection operates collaboratively. Everyone involved is striving for an outcome that will be in P’s best interests, although they may disagree on what that outcome should be.

Filing draft orders before hearings is not about ambushing the other side or influencing the judge. It is a procedural requirement. Lawyers must follow the Court of Protection Rules and Practice Directions, which is the literal rulebook for these cases and how they should be managed. Practice Direction 3B to the Court of Protection Rules sets out that when the application is first filed it must contain a draft of the final order sought (paragraph 2.3(1)(a)) and furthermore that when a final management hearing is to be heard that a draft order should be filed in advance (paragraph 2.6(2)). Practice Direction 4B also sets out what documents should be filed with the court in advance of a hearing, specifying that this should include what directions are sought (paragraph 4.3).

One might ask why this is necessary. Should it not simply be up to the judge to decide what order to make after hearing from everyone? There are certainly occasions where that happens, particularly when the parties cannot agree on what should happen next.

In practice, in most cases the parties will have exchanged evidence and correspondence, often over several weeks, and should hopefully have an understanding of the issues, any gaps in the evidence, and what they believe the judge should be asked to do. By way of example:

P is in a care home but owns their home and wants to return to it. The evidence does not say what state the property is in, or whether any adaptations might be required. Those representing P may therefore state that what is needed now is evidence to deal with those things, so there is a good picture of how a return home would work. The judge is asked to order someone to visit the home and write a report in plenty of time before the next hearing, and parties are to be invited to a RTM to consider the findings and come to the next hearing with what they think the next step should be.

It is common for a meeting between the parties to take place shortly before the hearing, sometimes even an hour beforehand, to try to reach agreement on the way forward or at least to identify the issues the judge needs to determine. That meeting by default would involve everyone who is joined as a party to the proceedings. If agreement is reached as to what should happen next by way of filing evidence and other directions, the parties will prepare a draft order for the judge to consider. When this is sent to the judge it is clearly marked as being agreed between the parties.

It is important to recognise that an agreed order does not bind the judge to approving it. Any draft order is simply a starting point, and the judge may have questions about the timescales or otherwise want to have some explanation provided as to why they should approve the order that has been supplied. It certainly is not axiomatic that a judge will approve an order simply because it is agreed between those who discussed it and drafted it.

Where agreement is not possible, each party may submit their own version of the order they are seeking. This helps the judge understand the extent of disagreement and the arguments that will be made.

Ultimately, the purpose of lodging draft orders is to assist the court in managing the case efficiently. While they may reflect consensus or competing positions, it remains the judge’s role to decide what is appropriate after considering all the evidence and submissions.

Draft orders are procedural tools designed to support the court’s decision-making, not to pre-empt it. In the Court of Protection, where collaboration is central and all parties aim to work towards an outcome that is in P’s best interests, these draft orders help to clarify positions and streamline hearings. The judge remains the final decision-maker, and any draft order is only ever a proposed way forward for them to consider.

David York is a Chartered Legal Executive in the Public Law and Human Rights Department at Irwin Mitchell Solicitors.