I’m regularly asked if hearings are going to go ahead many weeks before that hearing is listed. And I’m often surprised that people don’t understand why it is too soon to give any answer that isn’t “yes”. So I’m going to explore that a bit.
For anyone that is regularly involved in Court of Protection proceedings, it will come as no surprise that many hearings are listed, but do not actually take place. But for those of you that are less familiar, I will explain.
The Court of Protection operates in a fairly investigatory jurisdiction. That means the primary focus is often in getting the best possible evidence before final decisions are made. Often that means parties submitting multiple statements, because someone has questions after they receive a statement, or because it is an evolving situation and updates over time are required. And the vast majority of hearings are directions hearings. Which means the court is looking at what further evidence it needs. So if the parties can reach agreement about what the further evidence should be, then they can write to the court to ask the judge to make an order without holding the hearing. This has obvious advantages for the judge as well.
Now when I first started working Court of Protection cases, it was the norm for directions hearings to go ahead, even if the parties had reached an agreement. This gave the judges the opportunity to hear the parties’ explanations and consider the long-term trajectory of the case. But as the volume cases increased, judges faced increased time pressures and it became more common for hearings to be “on the papers” if agreement was reached. Somewhere along the line, this seems to have led some professionals to an assumption that all hearings will not go ahead.
Often missing some very crucial steps.
Most commonly, this occurs right after the local authority (or ICB) has filed their evidence. Essentially, “you’ve got our evidence, so do we need a hearing?”. But there are still a few steps between there and the hearing.
For one, I need to visit my client and talk to them about the issues in the statement.What my client says could change the direction we go in the proceedings dramatically. The proceedings are about them, after all. They might be really distressed, which might mean they want to attend the hearing. If that’s so, we are not going to agree to the hearing being cancelled.
But because most of the time my clients don’t instruct me directly, what the client says isn’t the only factor. After getting their views, we then need to prepare advice for the litigation friend, and get their instructions. That might be quick, but it might not.
Sometimes, we might need to go back to the records, or ask for more records as well. Just a tip, this is much more likely to be the case if the evidence is vague. A statement that says “she is getting out regularly” is more likely to prompt us looking for records to verify this than “I have reviewed the records and she has been out 5 times in the last 6 weeks, 4 times being lunch with her daughter and the fifth being to attend her granddaughter’s christening”.
If complex issues are raised, we might also need a barrister to advise us on what to do next. Or sometimes the litigation friend just wants to hear it from a barrister. We don’t take that personally. Most of the time, anyway…
Even after we’ve got wishes and feelings, supporting records, instructions and counsel advice, there are just a few minor matters remaining.
The first being whether we even agree what the next steps should be. My instructions might be to seek something that the other parties don’t want to provide. In that case, the judge will need to decide whether that is necessary or not. So it would be pretty foolish to say a hearing isn’t going to take place before we’ve worked out whether we agree or not.
Once we do agree. There’s one very trivial matter. Inconsequential really. Just a formality.
The judge needs to agree this is the way forward.
Regardless of what the parties agree, the judge is driving this particular bus. We are merely passengers. And the judge is perfectly within their rights to continue with a hearing even if everyone has worked out what they think the next steps should be. The judge doesn’t have to endorse that plan. They are the decision-maker. They can also ask the parties to explain the rationale for an order. Sometimes they will hold a hearing just to remind everyone who has the authority.
So asking a solicitor if a hearing is going ahead is often a bit like asking your gran if it will rain tomorrow. She might be right, but it’s not actually in her control.
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation.