Secret justice
Judge won’t say why he won’t say what he won’t say
The wife of a multimillionaire with severe dementia recently asked the High Court to make tax-saving arrangements for distributing his assets at an unannounced hearing from which the press and public were excluded.
Mr Justice Rajah, a Chancery division judge sitting in the Court of Protection, said in a judgment last week that giving advance notice of the hearing to the press would have undermined the purpose of the proceedings being in private.
He explained that the person at the centre of the case — referred to as P — held assets worth approximately £20 million. The judge said:
P is a figure who used to be in the public eye, and in whose affairs there is likely to be natural public curiosity. He has severe dementia and lacks any meaningful cognitive capacity. He is unable to comprehend, retain or use information presented in any form, relevant to a decision to make a gift or manage his affairs. He is unable to communicate at all. His life expectancy is limited. His condition is not generally known to others outside his immediate family.
P’s wife wanted to
make a statutory will and enter into a number of lifetime dispositions on behalf of P. The objective of these arrangements is to ensure a more orderly and tax effective succession to assets which P owns, or has an interest in, than would come to pass on his death if nothing was done.
The judge said that “a public hearing which identified P would inevitably result in significant publicity to satisfy public curiosity. That would be a serious intrusion in the private life of P and his family”.
For reasons that Rajah did not explain, he said that identifying P “could have serious consequences for P and his family”. It was not possible, said the judge, “to craft reporting or other restrictions which would protect P’s identity and the privacy of P and his family”.
There would be very significant risk of jigsaw identification unless the reporting restrictions were so stringent as to make a public hearing meaningless, he added. “This substantially outweighs any legitimate public interest in this hearing being in public, even with reporting restrictions, and amounts to a good reason for the matter to be heard in private.”
For that reason the judge gave no notice to the press of a hearing on 5 March and decided that there would be no published judgment on the substantive issue. All that could be reported was a 17-paragraph summary of his ruling on privacy.
As Rajah noted, there is a “supposition” that proceedings in the Court of Protection will be open to members of the public but subject to reporting restrictions. That was said by the Court of Appeal in a case involving the eldest of the highly successful Hinduja brothers, who was aged 86 and suffering from dementia at the time of the ruling in 2022.
Prof Celia Kitzinger, who helps run the well-respected Open Justice Court of Protection Project and who kindly alerted me to Rajah’s ruling, pointed out that the judge did not explain why he had not followed the procedure adopted in the Hinduja case.
Kitzinger told me:
I attended many private hearings in that case alongside journalists and there was no breach of the family’s privacy at all.
There was no practical way of creating a set of reporting restrictions that could keep the family anonymous. When journalists eventually applied for restrictions to be lifted so that the Hinduja family could be named, there were multiple careful hearings about what details could and couldn’t be reported. That, I thought, was the way it should be done with figures in the public domain.
She added:
This case is concerned with statutory wills, which are clearly a matter of legitimate public interest. Many people don’t know that you can write a new will, or change an existing one, in the best interests of someone who lacks the mental capacity to do it for themselves. It’s important for the public to know this is possible and to understand what the court takes into account when there’s disagreement. There are very few published judgments concerning statutory wills.
I’m concerned that the court was not able to benefit from submissions by journalists and members of the public who have hands-on experience of balancing privacy rights with freedom of information rights. It may be that the judge would have reached the same decision and kept the case private. But he would have had the opportunity to explore the transparency issues more fully and we could be more confident that the decision had been correctly made.
Instead of hearing submissions relating to public interest, the judge prevented journalists from learning about the hearing in advance. The case was listed without a Court of Protection case number and did not appear on the Court of Protection lists.
We had no opportunity to ask for permission to observe the hearing without reporting it, as we have done many times before. This is secret justice.
Comment
I share Kitzinger’s concerns. Rajah said there was “a clear distinction between the public interest and what the public is interested in”. He is not the first judge to have made that observation.
“The public may be curious about the private affairs and the wills of those in the public eye,” he continued. “It does not follow that there is a legitimate public interest in those matters… The fact that the family may be in the public eye does not mean that their right to respect for private and family life in relation to matters which are not in the public domain deserves any less respect than anyone else”.
Indeed so. But the authority Rajah cited for that proposition was a divorce case from 2018 in which the court had the benefit of written and oral submissions from Brian Farmer, at that time the family law reporter at PA News. The court refused permission to identify the husband — a successful businessman whose products were widely used by many people across the world — and, as far as I know, that ruling was respected by all concerned.
As Kitzinger argues, inviting representations from the media before making a decision to sit in private must be the correct approach. How can the courts properly balance competing interests unless they have heard arguments from both sides?
Update 27 March: Kitzinger has now reported on another decision from the Court of Protection approving a statutory will.
Thank you for this. Prof Kitzinger is right to highlight the fact that the public may not be aware of the “statutory will” procedure, and to suggest that there is thus strong reason to believe that there is real public interest (rather than simply prurient curiosity) in learning of that, even at the possible loss of privacy on the part of the family who would benefit from persuading the Court to make such arrangements. PS It is to be hoped that P is neither a politician nor a member of the judiciary, as the departure from the precedent set in the Hindujah case would appear even more alarming in that light.
Celia Kitzinger is a very well-informed and rightly well-respected observer who is right to draw attention to differences between this and the Hinduja case. In Re P [2009] EWHC 163 (Ch), which was the leading statutory will case decided much earlier in the life of the modern Court of Protection, the distinctive facts which would inevitably have identified P were completely redacted from the published judgment. P in that case has since died and his statutory will has been admitted to probate, with some media comment on it, although none that joins the dots with the judgment. In this case, any statutory will made under an order of the Court of Protection will also be public once admitted to probate after P’s death, just like any other non-Royal will