The case is Esper v NHS North West London Integrated Care Board [2023] EWCOP 29; [2023] WLR(D) 300, and is a decision of Mr Justice Poole.

This case has also revealed inconsistencies within and between a key practice direction and recently updated rules of court, and differences of approach between senior High Court judges. In these circumstances, it seems difficult to expect ordinary mortals to follow and understand the law, the key purpose of which is to prevent criminal penalties (including imprisonment) being imposed against someone in secret. It is particularly difficult because, as we discovered, the relevant rules and practice directions are not at all easy to find.

The contempt

The case arose in the Court of Protection, and concerned the breach of a court order (not to make contact with the protected party, EB) by the defendant, now named as Dr Esper. The judge dealing with the case, District Judge Beckley, found Dr Esper in contempt but decided not to impose any sanction. The main issues on the appeal were not about the rightness of that decision, which was not appealed, but about the district judge’s refusal to make an order anonymising Dr Esper during and after the contempt proceedings and in any published judgment. It is explained in the judgment that Dr Esper is a relative of AB, not a clinical professional in the case.

As it happens, no judgment seems to have been published, but perhaps that was because the defendant’s anonymity was preserved pending appeal (and then, evidently, lost).

Although the judgment of Poole J considers whether Dr Esper should have been allowed to remain anonymous, the real issue at the heart of the case was about whether, in a case about contempt of court, that was even possible. It was possible, the judge concluded, because a procedural rule under the latest version of the Court of Protection Rules (COPR), requiring such anonymity if certain conditions were met, took precedence over an earlier practice direction made by the Lord Chief Justice in 2015, which which it appeared to conflict.

In so concluding, Poole J took a different approach from that taken by another senior judge, Mostyn J, in the recent case of EBK v DLO [2023] EWHC 1074 (Fam); [2023] 4 WLR 51 which we commented on here: No anonymity for contempt against family court.

The Rules and the Practice Direction

The issue at the heart of both that case and the present one was whether and to what extent the  Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195, which was amended in 2020 to reflect changes in the Civil Procedure Rules (CPR), still applied in family courts or the Court of Protection after the changes to the civil court rules in 2020.

At the time, the Judiciary website published what it said was an updated version of this practice direction, but it appeared to be worded exactly the same as it always was. What had been updated was the preamble, reproduced on the page on the Judiciary website from which you can access a PDF of the 2015 Practice Direction. That preamble refers to the new rules and states that the Lord Chief Justice’s Practice Direction continues to have effect “Except in relation to proceedings for contempt of court to which part 81 of the Civil Procedure Rules 1998 apply” and that it “supplements the provisions relating to contempt of court, the Family Procedure Rules 2010, the Court of Protection Rules 2007, and the Criminal Procedure Rules 2014 and any related Practice Directions supplementing those various provisions.”

As it happens, both the Court of Protection Rules 2007 and the Criminal Procedure Rules 2014 had by this time been replaced, respectively by the Court of Protection Rules 2017 (COPR) and the Criminal Procedure Rules 2020 (CrimPR). But the amending preamble is problematic in other ways.

As Poole J pointed out, although the CPR, FPR and COPR had all been amended in 2020 with the intention of achieving consistency between them, there remained a number of anomalies and inconsistencies. In fact the COPR 2017 were amended in 2022 (not 2020) to include a completely redrafted new version of Part 21 dealing with Contempt of Court. This was intended to mirror the new parts inserted into the other procedure rules, such as Part 81 of CPR and Part 37 of FPR.

Finding the new rules

The new part Part 21 was inserted into the COPR 2017 by a statutory instrument: The Court of Protection (Amendment) Rules 2022 (SI 2022/1192). But unless you know that, you will be hard put to find it simply by searching on the internet. This is a major obstacle to transparency and indeed the conduct of litigation itself.

If you look up the “Court of Protection” on gov.uk (where all government information is available in a vast unsearchable bran tub) you will find information about the court, about forms, about practice directions, but nothing about the Rules. If you look up Court of Protection on the Judiciary website, which has information about each and every court and sub-division of court, you will find a page about the Court of Protection here but, again, nothing about the Rules. If you look up the Rules on Google, you will find links to the main 2017 edition of the rules on the official government legislation website, www.legislation.gov.uk but those rules are shown as they were first enacted, in 2017, and do not include the amendments introduced later. So they will not have the latest version of Part 21 which is what you need. Even if, via Google, you find the Court of Protection Handbook, which is a blog associated with the leading practitioner textbook, you still won’t find the new version of the rules. Their link only goes back to the original rules as enacted in 2017.

You have to know, or find out, that there is an amending statutory instrument from 2022 (one of several such amending instruments) which has the magic extra bits to be inserted into the original rules, instead of what’s there already.

Anonymity under the COPR

The judge, of course, did know about the new Part 21 and quoted extensively from it in his judgment. The critical bit was in rule 21.8(5) which provides

“(5) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non- disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”

This was the provision under which the judge held that Dr Esper’s name could have been anonymised, indeed should have been, if both of the two conditions set out were satisfied, ie that non-disclosure was necessary to secure the proper administration of justice, and that it was necessary to protect the interests of that party (ie Dr Esper). But in this case they were not.

However, rule 21.8(5) is an exception to the default position under the COPR which is that contempt proceedings should be listed and heard in public and judgment published afterwards. It is also in conflict with the 2015 Practice Direction which provides in paragraph 13 that any person found in contempt of court should be named in a published judgment.

Resolving the conflict

Mostyn J had taken the view in EBK v DLO (above) at [101] that

“if a defendant in proceedings governed by FPR Part 37 or COPR Part 21 is found to have committed a contempt then that defendant must be named in open court and in general terms the court must state what is the nature of the contempt of court and what punishment, if any, has been imposed. Whether the continued existence of the 2015 Practice Direction for such proceedings is the result of happenstance or was deliberately intended I cannot tell, but I am personally satisfied that it is well-justified and that there should never be the possibility of a defendant in any circumstances being found guilty and of, and sentenced for, contempt anonymously.”

Mostyn J had rested his conclusion on the mandatory nature of the wording of para 13 of the 2015 Practice Direction. He noted that the obligation to name the defendant would arise once the defendant had been found guilty of contempt. Before then, in the Court of Protection, the court might afford the defendant anonymity by applying COPR r21.8(5) and considering the balance of Art 8 and Art 10 rights.

Poole J in the present case disagreed:

“15. With respect, insofar as it relates to defendants in committal proceedings, which it clearly does, I do not read COPR r21.8(5) as applying only to those who have not, or not yet, been found guilty of contempt of court. Further, in relation to defendants who have been found in contempt of court, I do not agree that PD 2015 takes precedence over the COPR Part 21 such that publication of the name of the defendant is mandatory even if the necessity conditions of COPR r21.8(5) are met. In my view, where they are incompatible, COPR r21.8(5) prevails over PD 2015. COPR r21.8(5) applies to all parties and witnesses in committal proceedings in the Court of Protection, and at all stages – before and after any findings of contempt and/or the making of any committal order. I shall seek to explain those conclusions in the following paragraphs.”

He explains it essentially by saying that Part 21 of COPR read in conjunction with Practice Direction 21A(4) has the effect of qualifying the requirement to publish judgments in contempt cases by restricting it to cases where, not only is a finding of contempt made, but there is a committal order made. Practice Direction 21A was published to coincide with the new Part 21 of the COPR. Paragraph 4 reads:

“Responsibility of court for publication of judgments.

While paragraph (13) of rule 21.8 makes the court responsible for the publication of transcripts of judgments in contempt proceedings, it does not require the court to publish a transcript of every judgment, but only in a case where the court makes an order for committal.”

Poole J also concludes that, as a general principle of interpretation, a rule made by a statutory instrument, such as COPR 21.8(5), takes precedence over or “trumps” an earlier practice direction, such as the Lord Chief Justice’s 2015 Practice Direction on Contempt of Court, in the event of any clash or inconsistency. Even though both were made under equal statutory power, “where court rules which have the force of delegated legislation conflict with a practice direction, the rules should prevail”.

It was “paradoxical”, as counsel for the respondent had pointed out, that previously when there were different regimes for transparency within committal proceedings under the CPR, the FPR, and the COPR, the 2015 Practice Direction treated them as if they were the same. Now that the three sets of rules are the same, the amended preamble to the 2015 Practice Direction implied that they were different, by expressly allowing a carve-out for CPR Part 81. The effect of Poole J’s judgment is now to extend that carve-out to COPR Part 21 and FPR Part 37 as well.

Not surprisingly, the judgment ends with an urgent plea to the relevant rule committees to consider the various “anomalies and inconsistencies” identified.

In the meantime, the judge sets out, at [54], further guidance on how the Court of Protection should approach contempt of court cases. For convenience, that guidance is set out in full in a recent post on the Court of Protection Handbook blog: Committal hearings in the Court of Protection – publicity and complexity

 

This post originally appeared on The Transparency Project blog.

Featured image is a photo by Devin Dela Cruz on Unsplash.