By the core team of the Open Justice Court of Protection Project, 9th June 2026
On 21 May 2026, the Court of Appeal handed down judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements [2026] EWCA Civ 640. This was an appeal against the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3), which provided Guidance about the disclosure of Position Statements (which is sometimes used interchangeably with “skeleton arguments”) to court observers.
The effect of the Court of Appeal judgment is to limit the circumstances in which position statements will be disclosed to court observers and to refer the matter of how transparency is operationalised in the Court of Protection back to the ad hoc Rules Committee. We welcome the clarity that this judgment has brought. We are keen to work with the Rules Committee in the development of an appropriate approach both to the disclosure of position statements and also transparency more generally.
In the interim, we welcome the Court of Appeal’s suggestion that the three following documents listed at para 4.2 (a)-(c) of Practice Direction 4B are appropriate to disclose to observers:
(a) the case summary
(b) a chronology of relevant events
(c) the issues for determination at the hearing.
These have NOT been made available to observers in the past. Their disclosure to observers would be enormously helpful in advancing the open justice principle and enabling observers to understand the court decision-making process. We hope that this change can be implemented swiftly.
A helpful aspect of access to position statements has been that they provide observers access to the case law and legal propositions being relied upon in oral argument. During hearings, legal teams and judges often refer to case names and it can be difficult for observers without legal training in this area to identify them, and (therefore) to understand the reason and substance of the arguments before the court. As such we would welcome, particularly in the absence of position statements, one of the above documents also including a list of the key case law relied on.
Transparency helps the public to understand how judges reach decisions and reassures people that vulnerable individuals are being treated fairly. Transparency encourages good practice, and enables informed public debate about difficult issues involving mental capacity and human rights. It enables us to understand and scrutinise how the Court of Protection exercises its power. This is especially important at the moment, given the widespread challenges arising from recent judgments – such as the Court of Appeal’s judgment in Townsend which changes longstanding case law relating to clinical decision-making, and the Supreme Court’s judgment on the reference from the Attorney General of Northern Ireland on the meaning of deprivation of liberty, which overrules Cheshire West.
It is a matter of significant public interest that how these judgments are implemented, as well as other elements of the court’s work, is scrutinised closely. That is exactly the kind of work that the Open Justice Court of Protection Project was founded, six years ago, to accomplish. We look forward to continuing to support the judicial aspiration for transparency in the Court.
Note: This is a statement on behalf of the core team of the Open Justice Court of Protection Project (Daniel Clark, Amanda Hill, Celia Kitzinger, Gill Loomes-Quinn, Claire Martin). We extend our condolences to the family and fiancée of Carl Gardner.
Promoting Open Justice in the Court of Protection 