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Kanabar v Kanabar [2026] EWCA Civ 582 – deadlock after death: intestate appellants in appeals against financial remedy orders

The Court of Appeal’s recent decision in Kanabar grapples with the difficult circumstances where an appellant has died intestate following permission to appeal against a financial remedies order being granted and nobody is willing to apply for letters of administration. The Court provides helpful guidance in navigating this deadlock.   Background  The parties in the case were:  <ul class="wp-block-list"> <li>‘H’ who was the deceased;</li>  <li>‘A’ who was H’s first wife and the appellant; and</li>  <li>‘B’ who was H’s widow and the second respondent</li> </ul>  H and A had married in 1999 and had two daughters. They separated between 2006-2008. A decree absolute was granted in November 2010. In 2012, H married B and had one daughter with her.  H filed an application for financial relief in the divorce proceedings in September 2021. The key assets comprised three properties on the same road:  <ul class="wp-block-list"> <li>Number 468 - the former matrimonial home which was purchased in the parties’ joint names in 2001. This had been occupied by H and B with their daughter since 2012.</li>  <li>Number 472 - purchased prior to the marriage in 1998 in the joint names of H and his father. H’s case was that this property was subject to a life interest settlement made in 2005 purporting to transfer the beneficial interest from H and his father into the joint names of H’s two brothers.</li>  <li>Number 470 - purchased after the marriage ended in 2021 in H’s sole name. It was suggested by H that his father had provided the funds to purchase the property and hence was entitled to the entire beneficial interest.</li> </ul>   Although H’s father had initially indicated that he wanted to intervene in proceedings, no further steps were taken in this respect. Therefore, District Judge Birk refused H’s father’s application to intervene. A final order was made in November 2023 which provided that:  <ul class="wp-block-list"> <li>Number 470 was to be sold, with the proceeds being paid to A.</li>  <li>Number 468 was to be transferred to H,</li>  <li>H was to retain an interest in Number 472.</li> </ul>   At that hearing, H’s counsel was precluded from pursuing any argument as to the computation of any beneficial interest of H’s father. H filed a notice of appeal against the order in December 2023, following which permission to appeal was granted and a hearing was listed for September 2024 (which was subsequently adjourned). H however died intestate in July 2024. A hearing took place on 20 March 2025 at which A was represented by counsel and B was unrepresented. There was no personal representative present to represent H’s estate, and no letters of administration had been granted.  At the March hearing, the Judge noted that the absence of a personal representative presented a difficult procedural conundrum. The Judge highlighted the Supreme Court’s decision in Unger and another (in substitution for Hasan) v Ul-Hasan (deceased) and another [2023] UKSC 22, setting out that “procedurally financial remedy appeal proceedings survive the death of a party … so long as a suitable representative party is appointed to act on behalf of the estate of any deceased party” (first instance decision, para [29]).  The Judge considered a range of procedural options which it was believed were available to the court, including: a further adjournment, dismissing the appeal and striking out under FPR 2010 r. 4.4(1) or under FPR r. 30.10. Having considered these options, the Judge was “satisfied that, notwithstanding the lack of an active appellant, there is nevertheless a properly constituted appeal and no reason not to proceed” and hence the court could hear the appeal on its merits (first instance decision, para [44]).   Grounds of Appeal  A therefore sought to appeal on four grounds:  (1) The court erred in not striking out the appeal in circumstances where H had died and none of those who would benefit from the success of the appeal were willing to administer his estate.  (2) The court was wrong to allow the appeal on the basis of assertions of beneficial interest that were improperly pleaded and would inevitably have failed.  (3) The court was wrong to find that the district judge misapplied the law in respect of non-matrimonial property in circumstances where she rightly considered that she had to distribute that property to meet needs.  (4) In the alternative, having allowed the appeal, the court was wrong not to substitute a different order, thereby leaving the appellant with almost nothing from the marriage, and with no clear remedy under the Inheritance (Provision for Family and Dependents) Act 1975. The court should have made what provision for W it could in the circumstances.   The focus of the hearing before the Court of Appeal centred on grounds 1 and 4. Cobb LJ, when granting permission to appeal, observed in respect of ground 1 that this ground “raises an important point of principle and/or practice, namely what the court should do when the proposed appellant (to whom permission to appeal from the decision of a District Judge has been granted) dies intestate, and no person is in a position (or apparently willing) to take out letters of administration and/or authorised to prosecute the appeal before the Circuit Judge” (para [32]).   The Court of Appeal dealt with ground 4 then ground 1 and as such these will be addressed accordingly.   Ground 4  As set out above, the central question was whether an appeal, for which permission has been granted, survives the death of the appellant and if so, what the appellate court’s powers are. The Court of Appeal considered this question by looking to the seminal cases of Unger and Barder v Caluori [1988] AC 20.  The Court in Barder had considered whether leave to appeal out of time should be granted on the ground that assumptions made by the lower court at the time of their decision had been invalidated by subsequent intervening events. It was determined that leave could be granted, provided certain conditions were met (set out by the Court of Appeal at para [45]). Whilst the order was only set aside in Barder, subsequent decisions have demonstrated that courts are able to proceed to determine the order that should be made following the supervening events (those decisions are set out at para [46]).  In Unger, the court determined that the statutory provisions under both the Matrimonial Causes Act 1973 and the Matrimonial and Family Proceedings Act 1984 “created personal rights and obligations which can only be adjudicated between living parties” (Unger, para [49]). Similarly, this ‘orthodox understanding’ was to be found in the provisions of the Inheritance (Provision for Family and Dependents) Act 1975. Therefore, the court lacked jurisdiction to make an order for financial relief under the 1973 or 1984 Acts following the death of one of the parties, subject only to the discrete and limited exception provided by Barder. In Unger, Lord Legatt - reiterating the remarks of Mostyn J at first instance - described the current position as “illogical, arbitrary and capable of meting out great injustice” (Unger, para [109]) given that in light of White v White [2001] 1 AC 596 and Miller; McFarlane [2006] 2 AC 618 the orthodoxy has been challenged on the grounds that the law now recognises that a claim for financial remedies is brought as of right. However, the question of whether a claim for financial relief after a divorce can survive the against the estate of a deceased spouse did not fall for consideration. That was a matter, it was believed, for Parliament’s determination.  Baker LJ highlighted the inherent difficulty with the current position, distilling it down to being that “if the court’s powers are more limited in a ‘conventional’ appeal (where a party has died in circumstances which do not amount to a Barder event), this would leave the appeal court, after setting aside an order it has determined to be wrong, no longer capable of redetermining the claim at all” (para [57]). The court acknowledged that should the instant appeal turn on tis ground, then “the outcome would not be straightforward” (para [58]). The court was however able to circumvent this difficulty, setting out that there was a “substantial and … insurmountable impediment to the prosecution of the statutory right of appeal” (para [59]). Namely, there being no letter of administration granted in respect of H’s estate. This fell to be considered underground 1.   Ground 1  The court highlighted from the outset that a party who is entitled to a grant of administration cannot do anything as administrator before a grant is obtained - administrators derive their authority from their appointment by the court. In Piggott v Aulton (deceased) [2003] EWCA Civ 23 it was made clear that the estate of a deceased is not an effective party against whom a dispute could be determined. The natural personality of the deceased ends on their death.  Under CPR 1998 r.19.12, the court may proceed in the absence of a person representing the estate of the deceased or a person appointed to represent the estate of the deceased. However, there were two key issues which stemmed from this. Firstly, Baker LJ highlighted that the intended application of that rule was meant to be under relatively straightforward claims, of which this was not. On that basis, it would be inappropriate to proceed without the estate being represented in any event. Secondly, and more fundamentally, CPR 19.12 does not apply to family proceedings. Whether “this omission is deliberate or inadvertent”, it could nevertheless “be a reflection of the “orthodox understanding” that claims for financial remedies do not survive the death of one of the parties” (para [69]).  The Court also considered the power to proceed in a party’s absence under s.31F(7) of the 1984 Act, and the power to proceed in a party’s absence following them not attending under FPR 18.12. It was recognised that these powers could theoretically be stretched to cases where a party has died but, in the current circumstances, a party “was not merely absent, but non-existent” (para [71]).  For these reasons, the Judge was wrong to have concluded that “notwithstanding the lack of an active appellant, there is nevertheless a properly constituted appeal and no reason not to proceed”. Quite simply, the appeal was not properly constituted as there was not an appellant with legal personality. Baker LJ emphasised that the Judge could have adjourned the appeal to allow more time to apply for letters of administration, but this route was not taken.  The appropriate course therefore, in the court’s view, would have been to strike out the appeal. Whilst courts have the power under FPR r.4.4(1)(b) to strike out a statement of case if it appears the statement of case is an abuse of process, there was nothing present in the conduct of proceedings which could be realistically described as an abuse of process. Rather, the absence of a legal personality able to pursue the appeal would have amounted to a compelling reason for striking out the appeal notice under FPR 30.10.   Conclusion  The Court allowed the appeal on ground 1 and restored the order of the district judge.  In relation to ground 4, Baker LJ acknowledged both the concerns raised by Mostyn J and Lord Legatt in Unger and the difficulty which the current position creates. With the government having confirmed a consultation on matrimonial finance and cohabitation law, this was deemed to potentially provide a more appropriate “opportunity for a review of the circumstances in which claims for financial remedies after relationship breakdown survive the death of one of the parties” (para [80]).  Only time will tell whether this inherent complexity will be taken head-on.   Key Takeaways  <ul class="wp-block-list"> <li>In the absence of an appellant with legal personality, an appeal is not properly constituted.</li>  <li>Practitioners should move quickly to address representation issues following a litigant’s death, including considering adjournments to allow time for letters of administration to be obtained</li>  <li>Should letters of administration not be obtained, and hence there is no legally constituted appellant, strike out is likely to be the most appropriate route for resolution</li> </ul>

Cheshire West Overruled – New Approach to Deprivation of Liberty and Consent

Question for the Supreme Court  On 2 June 2026, the Supreme Court handed down judgment in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16. This is the most significant development in deprivation of liberty law since Cheshire West itself.  Although arising from a proposed revision to Northern Ireland's Deprivation of Liberty Safeguards Code of Practice, the case carried significance far beyond Northern Ireland. The Court was asked to consider whether a person aged 16 or over who lacks capacity to make decisions about their care and treatment may nevertheless provide legally effective consent to arrangements that would otherwise amount to a deprivation of liberty through the expression of their wishes and feelings.  Given the question raised, the case was a direct challenge to the principles associated with P v Cheshire West and Chester Council [2014] UKSC 19.  Under the Cheshire West approach, where a person aged 16 or over lacks capacity and is subject to arrangements amounting to an objective deprivation of liberty imputable to the state, formal authorisation is required. The proposed revision sought to permit a person who lacks capacity to be treated as consenting to those arrangements where their wishes and feelings demonstrate agreement with the placement.   The Judgement  In a unanimous judgment delivered by Lord Sales and Lady Simler, the Court has held that the majority decision in P v Cheshire West and Chester Council [2014] UKSC 19 was wrong in its interpretation of Article 5 ECHR and should no longer be followed. The Court's central conclusion is that the Strasbourg concept of "valid consent" is not synonymous with the domestic law concept of capacity. A person may lack capacity to make decisions regarding care and residence under the Mental Capacity Act framework but nevertheless be capable of providing valid consent for Article 5 purposes.  The Court concluded that the proposed Northern Ireland Deprivation of Liberty Safeguards Code of Practice is compatible with Article 5 and that adults who lack capacity under domestic mental capacity legislation may nevertheless be capable of providing "valid consent" for the purposes of Article 5 through the expression of wishes and feelings.  The summary view of the Court at paragraph [53] is key reading:  “For the reasons explained in detail below, we would answer the referred question in summary as follows:  (i) The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question. This was the approach set out in Engel v The Netherlands (1979–80) 1 EHRR 647 (“Engel”) and Guzzardi v Italy (1981) 3 EHRR 333 (“Guzzardi”) and it has been consistently applied by the European court since then, and in many different contexts, including the one with which we are here concerned. The judgments of the European court show that no single factor is determinative.  (ii) In addition to the objective element of confinement in a restricted space for a significant period, an individual will only be considered to be deprived of liberty if, as an additional subjective element, they have not validly consented to the confinement in question (Storck). Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty (see Stanev, HL and the other judgments of the European court considered below). On the contrary, an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.  (iii) Although the objective and subjective elements of deprivation of liberty are often considered sequentially by the European court in its assessment of an applicant’s specific situation, there is an overlap. The requirement to take account of the “type” and “effects and manner of implementation” of the measure in question means that the assessment of the objective element can take account of the specific context and circumstances of restrictive measures that are different from the paradigm of confinement in a cell.  (iv) The approach of the European court means that the effect of restrictions on an individual, including their compliance and the lack of objection if they are capable of objecting or giving tacit agreement, is relevant in assessing the objective element of confinement. The relative normality of the placement is also a relevant factor in this assessment. Similarly, in situations that are far from the paradigm of confinement in a cell, the purpose for which a measure has been taken is a factor to be considered.  (v) The European court has recognised that the process of assessing whether there has been a deprivation of liberty is no easy task in some contexts and may give rise to difficulties, especially in borderline or marginal cases. Equally, it may sometimes be difficult to ascertain the true feelings or preferences of vulnerable individuals who do not have mental capacity to decide on their living arrangements. The approach should be practical and realistic. Where there is serious doubt, no inference of valid consent should be drawn.  (vi) It follows from the analysis of the Strasbourg jurisprudence in section 8 below that, in setting out the acid test, the majority decision in Cheshire West departed from the longstanding multifactorial approach to determining whether a person is deprived of liberty within the meaning of article 5 and is wrong (as we explain in section 9 below).  (vii) For the reasons given in section 3 above, we have concluded that the 1966 Practice Statement should be applied and that Cheshire West should be overruled.  (viii) The Minister would not be acting incompatibly with article 5 in issuing the Revised Code and it is therefore within competence for him to proceed to issue it.”   The Court held that the Strasbourg authorities have never adopted an acid test and have instead consistently applied a multifactorial assessment focused on the individual's concrete situation. The acid test may remain relevant, but it is no longer determinative.  Instead, courts and practitioners must consider a range of factors, including:  <ul class="wp-block-list"> <li>the type of restrictions imposed;</li>  <li>their duration and effect;</li>  <li>the manner in which they are implemented;</li>  <li>the purpose of the arrangements;</li>  <li>the individual's response to them;</li>  <li>the degree to which the arrangements resemble ordinary living conditions; and</li>  <li>the extent to which the situation resembles the paradigm case of confinement, namely imprisonment in a cell.</li> </ul>  The Court did recognise there would be a spectrum regarding inferred consent, addressing that those with profound cognitive disabilities and severe autism would be at one end, and those where there is positive expression of wishes and feelings at the other. The Court set out at [191] that:  “The cases between the two ends of the spectrum will create varying degrees of difficulty and will require anxious consideration to determine what effect the applicable restrictions are having and what attitude the affected individual has to them. As we have said, it may be that if nothing more than mere compliance or acquiescence is a feature of the case, that is not enough. If the individual is capable of expressing a view and there is serious doubt about their attitude, no inference should be drawn.”  Importantly, the Supreme Court has given effect to view that profound physical disabilities, resulting in significant supervision and control by way of “care” does not amount to a deprivation of liberty (referencing the SM case before Lieven J). The Court expressed at [197] that:  “Our view accords with the analysis of Professor Eldergill, discussing the position of a person in the final sad stages of dementia, confined to bed and so cognitively impaired as to be unable to form the idea of swallowing, let alone moving about. In this situation, no one is interfering with, limiting, or controlling their liberty to do anything they can do…”   Practical Impact  The full judgment will require careful reading and consideration, a reactive article giving the headlines is unlikely to do this justice. But, several immediate consequences are apparent:  <ol class="wp-block-list"> <li>The acid test is no longer the definitive answer to whether Article 5 is engaged and Cheshire West is expressly overruled;</li>  <li>Evidence of a person's wishes, feelings, level of awareness and lived experience will assume far greater significance than under the post-Cheshire West framework;</li>  <li>Practitioners will need to undertake a broader assessment of the person's circumstances rather than focusing solely on supervision, control and freedom to leave;</li>  <li>DoLS authorisations are likely to substantively drop off.</li> </ol>  The practical consequence may be that significantly fewer care arrangements will amount to a deprivation of liberty. Much of the post-Cheshire West increase in DoLS authorisations arose because the acid test captured large numbers of compliant individuals living in care settings. The Supreme Court's return to a multifactorial approach may substantially reduce the number of cases requiring authorisation, although the extent of that reduction remains to be seen.  A thought for practitioners will be the challenge to assessments of “valid consent” – given such determination by authorities would result in Article 5 not being engaged, and thus no Urgent or Standard Authorisation being necessary and the Court of Protection not an available jurisdiction. In short, the answer will be Judicial Review.  Even with the law change, existing authorisations will remain lawful, authorities will need to approach cases cautiously and with significant guidance, and the MCA Code has not been updated. It is likely there will be a period of uncertainty before operational practice catches up.  The judgment represents a fundamental shift away from the bright-line approach which has dominated deprivation of liberty practice since 2014. Whether that results in greater respect for autonomy, fewer authorisations, or increased uncertainty at the assessment stage remains to be seen. What is clear is that practitioners can no longer approach Article 5 through the lens of the Cheshire West acid test alone.  PLP will be hosting a Law with Lunch on 11 June 2026 at 1pm to discuss the Judgment in more detail and to consider how we apply this moving forward – to join, please email events@parklaneplowden.co.uk

Deputyship fees in Fatal Accidents Act claims- recoverable or not? The High Court says yes in Burgess v Silkorsky & Anor [2026] EWHC 1245 (KB)

In Graham Burgess v Dominik Sikprski & Anor [2026] EWHC 1245 (KB), the High Court considered whether professional deputyship fees are recoverable as damages under the Fatal Accidents Act 1976.   Background  This was a tragic case in which Mrs Griffiths was struck and killed by the Defendant’s vehicle whilst it was reversing up a residential cul-de-sac. Liability was admitted, with an agreed liability split of 70/30. Mrs Griffiths left behind her husband, Ian, and two adult children, Aaron and Matthew. Both Aaron and Matthew had moderate learning difficulties, with Aaron also suffering from epilepsy. Mrs Griffiths had provided a great deal of care and assistance for Aaron and Matthew, and both lacked capacity to manage their property affairs and finances.   The Issue  The judge awarded both Aaron and Matthew damages of £449,341 each, comprised of past and future services dependency, as well as loss of intangible benefits. Because they both lack capacity, Aaron and Matthew are classed as ‘protected beneficiaries’ under CPR Part 21, and the Court is required under CPR r.21.11(9) to direct the litigation friend to apply to the Court of Protection for the appointment of a Deputy, the sum recovered being over £100,000. It was agreed by both deputyship experts that this should be a professional rather than a lay deputy.  The issue then arose as to whether those professional deputy’s fees are recoverable under the FAA.   Submissions  It was the Defendant’s case that they were not recoverable as a matter of law. Under section 3 of the Act, the only damages recoverable are such damages, other than damages for bereavement, that “may be awarded as are proportioned to the injury resulting from the death to the dependants respectively”. They highlighted that common law rules do not apply to the assessment of damages under the FAA, and argued that whether a head of damage is recoverable is purely a matter of statutory construction.  The Court noted an entry in McGregor on Damages (22nd Edition, 42-028), which succinctly outlines, considering relevant case law, what this means in practice for what can be recovered in dependency claims:  “There remains the loss of the pecuniary benefit arising from the relationship which would be derived from the continuance of the life and which may consist of money, property or services: in other words, the value of the dependency. The dependant is entitled, by clear principle of law, to full compensation for the loss of this pecuniary benefit, but, except for funeral expenses since 1934,interest since 1970,and the limited entitlement for bereavement since 1982,to no more.”   In other words, a dependent cannot claim losses which simply arise as the result of the death, but only those that represent the loss of any kind of future financial benefit the deceased would have provided, subject to specific statutory exceptions.  The Defendant argued that the cost of employing a deputy does not itself represent the loss of a benefit that Ms Griffiths would have otherwise conferred on her dependents had she lived, and instead arises as the result of her death. As there is no statutory exception for deputyship fees, it follows that these fees are irrecoverable under the FAA.  The Claimant argued that these fees were a “necessary corollary” to an award for loss of services and are therefore recoverable. This is because, using the wording of Jay J in Rupasinghe v West Hertfordshire Hospitals NHS Trust [2017] PIQRQ1 at paragraph 47, what the Act is concerned with are losses which flow from what the Deceased did when alive. Using this interpretation, the cost of appointing a financial deputy flows from the need to properly replace the services that Mrs Griffiths would have provided.   Judgement  The judge accepted that he must identify a pecuniary loss to the dependents, which must be the loss of a benefit in money or money’s worth which would have accrued if Mrs Griffiths had survived. He also accepted that the professional administration of a fund that has been awarded for the benefit of Aaron and Matthew is not in itself a benefit that Mrs Griffiths would have conferred had she lived, given there would have been no fund and she would not have qualified to administer it. However, he found that these costs should be recoverable as damages regardless.  The judge highlighted that when compensating a dependent for losses they have been deprived of, the Court must give “full compensation” for the loss of that benefit. As to what that means in a given case, he decided that the Court must take a realistic view of what sum is needed to replace, in practical terms, the identified services that the deceased would otherwise have been providing.  By way of example, the judge highlighted case management costs. In order to ensure that care services are appropriately and properly administered, it is appropriate to incur case management costs to ensure that the services Ms Griffiths would have provided are properly replicated. The judge noted that the case managers are not themselves replicating what Ms Griffiths would have done herself, but their fees are a necessary corollary to ensure support workers are engaged in a way which properly replaces the services Ms Griffiths would have provided.  The judge decided that deputyship fees should be approached in the same way. Any sums awarded to replace future services would likely be incapable of being used without the appointment of professional deputies to unlock them. Therefore, deputy fees are also a “necessary corollary”, given that full compensation for the loss of services would also include the costs of allowing the dependants to make effective use of those funds.   Commentary  This judgment skilfully navigates a potentially tricky statutory position and arrives at what might be regarded as an equitable outcome. The alternative would have brokered a position wherein dependents receive sums to replace future services, which are immediately eaten up by the fees required to administer and implement them.  This was an issue that neither the parties nor the Court could find previous authorities on, and so the judge has granted permission for the Defendant to appeal on this issue.  The judgment is available <a href="https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/1245">here</a>

Transparency and Open Justice in the Court of Protection – Court of Appeal Says No to Routinely Disclosing Position Statements

Introduction  The Court of Appeal has delivered significant guidance on transparency and open justice within the Court of Protection in <a href="https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/640">Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2026] EWCA Civ 640</a>, a decision likely to have substantial practical implications for practitioners, observers, and judges alike.  The outcome follows an earlier decision by Poole J that Position Statements, those documents parties file with the Court to set out their case in advance of appearing in Court, may be disclosed to public observers as the same would be advancing open justice. The issue arose following requests made by Professor Celia Kitzinger, a well-known advocate for transparency and open justice within the Court of Protection, who intervened in the appeal proceedings.  The central thrust of the Court of Appeal’s decision was that, although Court of Protection hearings are frequently conducted in public, the proceedings themselves remain private proceedings in which the Article 8 rights of those involved retain substantial importance.   The Appeal  In a helpful turn, the Court of Appeal judgment begins where it ends, at paragraph [12], Sir Stephen Cobb, the new President of the Family Division and Court of Protection, sets out the takeaways from the decision, that:  “i) Court of Protection proceedings are private by default (rule 4.1 of the Court of Protection Rules 2017) (‘COPR 2017’), even where the court directs that hearings are to be held in public under rule 4.3 of the COPR 2017. Many hearings in the Court of Protection are of course in public, but a direction for a public hearing does not convert the proceedings into “public proceedings” equivalent to litigation in the civil courts or tribunals. The judge below erred in treating the proceedings as public simpliciter and in importing openness principles from jurisdictions which are public by default;  ii) Once lodged, position statements are “court records” within the meaning of rule 5.9(2) of the COPR 2017 (following Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 [2020] AC 629) (‘Dring’). However, they are not automatically disclosable to observers or non-parties, and court authorisation is required for disclosure of them to non-parties under rule 5.9(2) COPR 2017;  iii) Open justice does not entitle observers to access all material informing judicial decision-making. Access to documents must be justified by a demonstrable application of the open justice principle, not by curiosity, research, education, or personal interest;  iv) Disclosure of position statements which cite highly personal source material from the written evidence is a serious interference with Article 8 ECHR rights; in this case, the court failed to engage with rule 5.9(4) COPR 2017 and specifically consider whether disclosure should be: refused, redacted, or subject to use restrictions (e.g., in relation to source evidence);  v) The procedure for disclosing position statements to members of the public should be considered as a matter of priority by the ad hoc Court of Protection Rules Committee (‘COPRC’); in the meantime, the guidance offered by the Judge at [J2/36] should not be followed; the court should in the meantime consider disclosing case summaries, chronologies and lists of issues to observers who request information;  vi) The Court of Protection exists for P’s benefit. Transparency must support justice, not overwhelm it.”  The court concluded that the judge had fallen into error by treating the proceedings as public proceedings equivalent to ordinary civil litigation. While hearings may be conducted in public subject to reporting restrictions, the proceedings themselves remain private proceedings governed by a materially different procedural and constitutional framework. The Court of Appeal stressed that the Court of Protection exists to determine intensely personal issues affecting highly vulnerable individuals who are frequently before the court involuntarily.  Sir Stephen Cobb explained at [63] that “It is for the person seeking access to documents to explain why they seek them and how granting them access will advance the open justice principle” and that if there is no “good reason” then disclosure should not follow.  The Court of Appeal concluded that the first instance judge had failed properly to engage with rule 5.9(4) COPR 2017, which requires consideration of whether disclosure should occur on an edited basis. The court stressed that disclosure of unredacted position statements containing sensitive source material constituted a serious interference with Article 8 rights.   Discussion  The judgment highlights a point likely to concern practitioners moving forward, that overly permissive disclosure practices may deter witnesses from providing frank evidence and may discourage P from participating fully in proceedings. Sir Stephen Cobb warned that transparency “must support justice, not overwhelm it.”  One of the most immediately significant aspects of the judgment is the Court of Appeal’s clear indication that the guidance previously given by Poole J should not presently be followed pending urgent consideration by the Court of Protection Rules Committee. In the interim, the court suggested that disclosure of case summaries, chronologies, and lists of issues may represent a more proportionate means of advancing open justice whilst adequately protecting Article 8 rights.  Importantly, the Court of Appeal did not strictly conclude that position statements cannot be disclosed. Rather, the judgment makes clear that there must be a clear approach to this by observers who must establish a “good reason” that disclosure of such documents advance open justice; if such a reason is established, the Court will still need to undertake a balancing exercise, considering P’s rights to privacy and the broader welfare considerations inherent in Mental Capacity Act proceedings. Reaffirming that proceedings are for P’s benefit, whilst open justice is important, it cannot be the enemy of P’s welfare.  A further, albeit more discrete, point of practical significance arose from Sir Stephen Cobb’s observations regarding anonymisation within position statements. Many practitioners have taken to using acronyms and anonymisation within position statements to refer to P, with it being clear that some judges specifically will require this. Helpfully, at [47] and [65] respectfully, the Court of Appeal has expressed clear support for using P’s name – they are afterall people involved in these highly sensitive and emotive cases:  “Anonymisation of judgments in this jurisdiction (supported by the terms of a Transparency Order) is commonplace, and while alphabet soup may not to be to everyone’s taste (and can be administratively burdensome to produce), it is often necessary to protect P. The requirement to anonymise judgments does not imply a requirement to do the same for position statements”  “A case concerning the efficacy of an ADRT is one which properly engages a strong and legitimate ‘public interest’, but the extent to which documentation in a case concerning an ADRT is opened up to the public will always need to be carefully considered so that it supports, rather than overshadows, the court’s core purpose. Anonymisation of the filed documents (i.e., by the substitution of initials for real names) may unhelpfully depersonalise the process as I have mentioned above”   Takeaways  The principal takeaway for practitioners from the Court of Appeal’s judgment will be the clear movement away from the routine disclosure of position statements to observers upon request. However, whilst the court has plainly closed the door to informal or automatic disclosure, it has simultaneously left open the possibility of focussed applications by observers seeking disclosure in individual cases. Practitioners will therefore need to be prepared to engage with these issues actively. In practical terms, this is likely to require careful consideration in every case as to whether disclosure is opposed, whether redaction may be appropriate, and how disclosure may impact upon P’s Article 8 rights and participation within proceedings. Practitioners will increasingly need to anticipate such applications, take instructions at an early stage, and be prepared to make submissions balancing transparency against privacy and welfare considerations.  Perhaps the more immediately practical takeaway, however, arises from Sir Stephen Cobb’s observations regarding anonymisation and what might fairly be described as the dehumanisation of proceedings through excessive use of acronyms and initials within position statements. These cases concern individuals at the most vulnerable and difficult stages of life, frequently involving serious medical treatment, deprivation of liberty, questions of autonomy, or end-of-life care. Against that background, the Court of Appeal’s observations serve as a timely, and frankly necessary, reminder that these proceedings concern people, not merely “P” or a sequence of initials. Whilst anonymisation will often remain necessary across many documents, particularly within judgments and those intended for wider circulation, the court’s comments may encourage practitioners to reconsider whether highly depersonalised drafting within position statements is either necessary or desirable.

Coroners Statistics 2025: Key Trends

On 14 May 2026, the Ministry of Justice released Coroners Statistics 2025 summarising deaths reported to coroners in England and Wales last year.   Headline findings:  <ul class="wp-block-list"> <li>Number of reported deaths: 147,800 deaths were reported to coroners in 2025, a 15% decrease from the previous year and the lowest figure since 1995.</li> </ul>  <ul class="wp-block-list"> <li>Proportion of registered deaths reported to coroners: 26% in 2025; a decrease of 5% from the previous year.</li> </ul>  <ul class="wp-block-list"> <li>Deaths in state detention: 622 were reported to coroners in 2025; up from 549 in 2024. This increase was driven by an 8% rise in deaths of those in prison custody and a 21% rise in deaths of those in Mental Health Act detention.</li> </ul>  <ul class="wp-block-list"> <li>Proportion of post-mortem examinations carried out: 75,900 post-mortem examinations were ordered by coroners in 2025, a 7% fall compared to 2024. The proportion of reported deaths requiring a post-mortem increased by five percentage points over the same period.</li> </ul>  <ul class="wp-block-list"> <li>Inquests opened: 36,000 in 2025, down 2% from the previous year. As a proportion of deaths reported, the number of inquests opened is at its highest level since the start of the annual time series in 1995, at 24%.</li> </ul>  <ul class="wp-block-list"> <li>Inquest conclusions: 39,100 inquest conclusions were recorded in 2025, a 1% decrease from the previous year. </li> </ul>    Comment:  The 2025 statistics show a 15% decrease in deaths reported to coroners, totalling 147,814 – the lowest since 1995. The report credits this to the introduction of the statutory Medical Examiner (”ME”) system, which independently scrutinises all deaths before certification or referral.  The impact of the new system can also be seen in the sharp decline in “natural causes” conclusions at inquests, which fell by 24% in 2025. This is unsurprising given that many deaths previously referred due to the absence of a certifying doctor or uncertainty over certification are now likely being resolved using ME scrutiny before coronial involvement.   Despite the overall reduction in referrals, the proportion of reported deaths resulting in an inquest has risen to 24% – the highest on record – indicating that coroners are increasingly dealing with more complex and publicly significant cases.  One of the more striking aspects of the report is the increase in deaths in state detention, which rose by 13% overall. The figures include an 8% increase in deaths in prison custody and a 21% increase in deaths of those detained under the Mental Health Act. Although these still represent a small proportion of coronial work, the increase is likely to attract attention given the mandatory investigative obligations and ongoing pressures in custodial and mental health settings.  Finally, there was an 8% reduction in Prevention of Future Death (PFD) reports in 2025. It is not yet clear whether this reflects fewer systemic failings, changes in coronial practice, or the changing profile of cases now reaching coroners, but the trend is notable against a background of continuing concern about detention deaths, alongside the resilience of public services.   You can read the full report and analysis on the GOV.UK website: <a href="https://www.gov.uk/government/statistics/coroners-statistics-2025/coroners-statistics-2025-england-and-wales">https://www.gov.uk/government/statistics/coroners-statistics-2025/coroners-statistics-2025-england-and-wales</a>   Jessica is accepting instructions in the Inquests and Inquiries Team.

The Cost of Litigation: Do Losing Representatives have to pay?

Introduction:  Everybody knows the basic rule on costs in hostile litigation – although costs are in the discretion of the court, the general rule is that the losing party pays<a href="#_ftn1" id="_ftnref1">[1]</a>.  But what if you’re a little bit different?  What if you are the executor or administrator of an estate, a litigation friend, or a representative appointed under CPR 19.12?  If you are, and you lose, do you still have to pay?  Guidance on this issue was handed down on 28th April 2026 by Andrew Twigger KC, sitting as a Deputy Judge of the High Court, in the case of O’Boyle v Wallis [2026] EWHC 951 (Ch) where the court considered an appeal on the issue of whether a 19.12 representative was personally liable for the costs of the claim which had largely been incurred during the claimant’s lifetime, before the 19.12 representative had been appointed.   CPR 19.12 provides -  Death  19.12 (1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order–  (a) the claim to proceed in the absence of a person representing the estate of the deceased; or  (b) a person to be appointed to represent the estate of the deceased.  (2) Where a defendant against whom a claim could have been brought has died and  (a) a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;  (b) a grant of probate or administration has not been made –  (i) the claim must be brought against “the estate of” the deceased; and  (ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.  (3) A claim shall be treated as having been brought against “the estate of” the deceased in accordance with paragraph (2)(b)(i) where –   (a) the claim is brought against the “personal representatives” of the deceased but a grant of probate or administration has not been made; or  (b) the person against whom the claim was brought was dead when the claim was started.  (4) Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.  (5) Where an order has been made under paragraphs (1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.   Background to O’Boyle  In O’Boyle, the proceedings had originally been issued by Mr O’Boyle in 2020, with Mrs O’Boyle being subsequently joined as a second claimant. The conduct of the proceedings by the claimants was described as “chaotic” and very little had been achieved by the time Mr O’Boyle died suddenly and unexpectedly in December 2024. In advance of a hearing listed for April 2025, Mr O’Boyle’s daughter applied to represent her father’s estate pursuant to 19.12(1)(b), which application was unopposed and granted on the papers. At a hearing in July 2025 the second claimant and the 19.12 representative advised the court that they had no funds and wished to bring the proceedings to an end. The claims were therefore struck out, and the claimants were ordered to pay the defendant’s costs, to be assessed on the indemnity basis (due to the claimants’ conduct).  The 19.12 representative appealed against the order insofar as it obligated her to personally pay the costs.   The Judgment  The judge acknowledged the distinction between a personal representative of an estate (“PR”) and a 19.12 representative.  Estate assets are vested in a PR who can access the same to fund her costs and indemnify herself for any adverse costs order.  Where the PR is the claimant she is asserting a cause of action, legal title to which is hers, and whether she is the claimant or defendant, the PR is in a position to ascertain the extent of the estate’s assets and liabilities and can take appropriate steps to mitigate the risks, including petitioning for an insolvency administration order if appropriate.   In contrast, a 19.12 representative has no general rights or obligations in relation to the estate. The estate assets are not vested in her, and when representing a claimant, she is not asserting a cause of action to which she has title.  She is not a party bringing her own claim but is simply assisting an estate which has no other representative by asserting its cause of action on its behalf.  A 19.12 representative does not have automatic access to the assets of the estate to fund her costs and she cannot easily indemnify herself for any adverse costs orders.  As such, the court concluded:  These seem to me sound reasons in principle why the general rule that a Personal Representative is normally personally liable for costs should not apply to a representative appointed pursuant to CPR 19.12. (para 130)  When considering the position of a 19.12 representative, the judge found an analogy with litigation friends helpful, noting the case of Barker v Confiance Ltd<a href="#_ftn1" id="_ftnref1">[1]</a> [2020] EWCA Civ 1112 in which Newey LJ concluded that there is a distinction to be drawn between the position of a claimant’s litigation friend and that of a defendant’s, in that liability for costs should typically be imposed on a claimant’s litigation friend, although with the important caveat that, when deciding whether to make such an order, the court is exercising a discretion and entitled to have regard to the particular circumstances of the case, whereas there is no presumption that a defendant’s litigation friend should bear costs which the defendant would have been ordered to pay if not a child or protected party. At paragraph 121 of O’Boyle it was said:  Amongst Newey LJ’s reasons [in Barker] for concluding that Morgan J had taken the wrong approach, he said in paragraph 63(iii) that there was force in the policy argument that children and protected parties need litigation friends, but “there must be a risk that, if a defendant’s litigation friend were unusually vulnerable to an adverse costs order, that would deter suitable individuals from taking on the role.” Similar policy considerations apply, in my judgment, to the position of a representative appointed pursuant to CPR 19.12.  It was the conclusion in O’Boyle that, when deciding whether a 19.12 representative should be personally liable for costs, the starting point ought to be the same as for a litigation friend, albeit that in every case the court is exercising a discretion and the ultimate question should therefore be “whether in all the circumstances it is just to make the order”.  The judge favoured an approach which gives the court the flexibility to recognise that a representative who has assisted the parties and the court should not be unduly vulnerable to a costs order and found that:  … it will, in my judgment, typically be just to order a representative of a claimant appointed under CPR 19.12 to pay costs if such an order would have been made against the estate, but always subject to the court’s overriding discretion in the particular circumstances. That is principled and in accordance with the overriding objective, it seems to me, because it is generally the case that a claimant is in the driving seat; he can choose whether or not to proceed with a claim and, if the claimant proceeds, that will necessarily cause the defendant to incur costs. (para 138)  For costs orders against 19.12 representatives for a defendant the judge said:  … just as with a litigation friend, there is … no presumption that a defendant’s representative should bear costs which the estate would have been ordered to pay. Similar factors to those applicable to a litigation friend might justify such an order, including bad faith, improper or unreasonable behaviour, or the prospect of personal benefit. … This approach is principled and accords with the overriding objective, in my view, because a claimant who brings a claim against a defendant cannot reasonably anticipate that anyone other than the defendant might become liable for his costs if he wins. If the defendant dies, then provided the defence is thereafter conducted reasonably, liability for the claimant’s costs should come from the deceased defendant’s assets, which were always the potential pool for the claimant’s recovery of costs. If, however, the representative conducts the defence in bad faith, or improperly, or unreasonably, the representative will potentially have caused the claimant to incur costs over and above those which would always have been incurred simply because the claim had been brought. In those circumstances it is fair that the representative should have to bear those costs. (para 139)  Principles applied to the Facts  On the facts of the case, the judge noted that the Appellant was the 19.12 representative for a claimant, but that she had only been appointed on 14th March 2025.  He further observed that it is of assistance to the court, and the other parties, that responsible individuals are appointed as representatives, who are willing to take a fresh view of the proceedings and, if appropriate, to discontinue them or agree to them being struck out, and in such circumstances “it is doubly important to treat representatives fairly by not imposing liability on them for costs which they did not cause.”  The judge noted that until the defendant heard of Mr O’Boyle’s death, she could not have expected to recover costs from anyone other than Mr and Mrs O’Boyle, and it would not be in accordance with the overriding objective to allow the defendant to also recover those costs from Mr O’Boyle’s daughter, merely because she was willing to act as a representative at a late stage of the claim.  The judge therefore directed that the Appellant was not personally liable for costs prior to 14th March 2025.  From the date of the appointment as 19.12 representative, the judge found no reason to depart from the general rule that, as a claimant’s representative, the Appellant should be liable for the costs, along with Mrs O’Boyle and Mr O’Boyle’s estate.   Postscript: Directions as to Costs  In deciding O’Boyle, the court considered the case of Bourlakova v Bourlakov [2024] EWHC 1937 (Ch) in which a defendant’s 19.12 representative, who was an independent professional whose costs were being indemnified by the claimants, sought an order, four months into his appointment, that he was not personally liable for any costs orders made against the estate.  At paragraph 71 of O’Boyle, the judge noted that any 19.12 representative could seek directions as to whether or not she should have liability as to costs.  Given the conclusions of the court in O’Boyle, this would not be usually appropriate for a claimant’s 19.12 representative, but for those representing a defendant, it is certainly something to consider seeking upon appointment.   Nicola Phillipson TEP  Parklane Plowden Chambers  30th April 2026    <hr class="wp-block-separator has-alpha-channel-opacity"/>  [1] Yes I know there are lots of exceptions particularly for a probate and trusts lawyer – but that’s a different article to be written on a different day  [2] Also known as Glover v Barker

Pensions after Standish: HHJ Hess Reaffirms Fairness Over Formula in BS v HC [2026] EWFC 20 (B)

BS v HC provides a helpful illustration of the approach to be taken to matrimonialisation where pensions form a key part of the asset base. This case also sets out and reaffirms the rightfully exacting standard required for an add-back argument to succeed.  Background  The husband (“H”) was aged 63 and had been previously married with four children. That marriage ended in 2005 and a final order was granted in 2006. H had ongoing obligations to his first wife until 2019 when further capital provision was made.  The wife (“W”) was aged 60 and unlike H had not been previously married. She had no children. H and W met in 2008 and started cohabiting in April 2009, marrying in August 2009. From April 2009 until early 2014 the parties lived in a flat in East London which was owned by W’s father, having previously been W’s home prior to the parties meeting. No rent was charged. From 2014 to 2023 they lived together in Gloucestershire and then in Devon from 2023 to 2024.  The wife received a gift in July 2013 from her father amounting to £1,500,000 which was used to purchase a property in Gloucestershire in the parties’ joint names for £838,000. H worked in a family-owned business until his retirement in 2021. From then on, he provided consultancy services on a limited basis. W had previously worked as an interior designer, however she had not done so for approximately 13 years. At the time of proceedings, W lived in the family home in Bristol.  The parties separated on 31 March 2024 (H’s case) or 19 May 2024 (W’s case). The marriage was one of medium length being 15 years. W issued a divorce application on 24 June 2024, with a Conditional Order being made on 15 January 2025.  Add-back  H had made gifts to his adult children amounting to £102,330 between May 2024 and December 2025. W sought to receive an add-back of that value. The argument put forward on behalf of W was that these funds ought to be added back into H’s column of the asset schedule as “it is unfair if one of them makes substantial non-consensual gifts prior to a division of assets because the mathematical effect is that the non-consenting party is paying for half of the gift” ([14]).  Comparatively, H argued that the payments were part of a habitual wish to help his children and highlighted a high degree of reciprocal spending on the part of W in the last year or so. W had acknowledged that high level of spending in her oral evidence, justifying having spent that amount due to the trauma and distress of the instant proceedings.  HHJ Hess reiterated that “the legal test for add-backs is a high one – only dissipations which are wanton or reckless and where the spending was deliberately targeted towards diminishing the share of the party will justify such an add-back” ([15]). It was made clear that it is wholly correct for courts to analyse with sufficient scrutiny claims that any financial remedies litigant has engaged in manipulative spending to diminish the sharing claim. However, considering the matter in the round, although some of the payments by H were deemed to have come “close to the line”, the spending of W was to be “properly treated as neutralising the position” ([16]). Therefore, this was not a suitable case for an add-back.  Pensions  H had pensions of substantial value (£3,063,941) whilst W had pensions of limited value (£35,363). H joined a defined benefit salary scheme for his employers on 1st February 1988. H’s rights under the scheme were accrued by reference to a multiplier which was subject to a maximum cap of 20 years of service. In 2006, H’s first wife received a 50% pension sharing order, taking an external transfer of £130,000.  During proceedings a PODE report had been produced by Mr Nobbs who set out that at the point at which H and W began cohabiting in April 2009, the pension would have had a cash equivalent (“CE”) value of around £180,000. By 2008, and therefore before the parties met, that cap had been reached. The scheme closed in 2012 meaning that no further rights accrued after that date.  By March 2021, the full CE value of H’s rights was £2,407,990 subject to an 8% reduction on transfer (£2,215,351). One of the reasons for the significant uplift was because substantial contributions had been made to the scheme from H’s company to address previous underfunding, with between £1,000,000 - £2,000,000 being contributed yearly. The scheme also benefited from macro-economic financial conditions and changes in the actuarial methodology for pension valuation. In March 2021, H transferred out of the scheme to a Quilter Self-Invested Personal Pension with a CE of £2,215,351.  The central dispute revolved around whether or not Hs pensions could be considered as matrimonial property – therefore being subject to the sharing principle – or non-matrimonial property and hence only to be drawn upon on a needs basis.  Approach to Apportionment  A number of methodologies can be adopted when looking at the issue of apportionment, with the Pensions Advisory Group’s most recent report (“<a href="https://www.nuffieldfoundation.org/wp-content/uploads/2023/A-guide-to-the-treatment-of-pensions-on-divorce-2nd-edition.pdf">PAG2</a>”) setting out three main methodologies: (i) ‘the deferred pension methods’, (ii) ‘the CE method’, and ‘the Straight-Lined method’.  In producing the PODE report in the instant case, Mr Nobbs had adapted the methodologies, instead opting for (i) ‘the service approach’ (similar to ‘the deferred pension methods’); (ii) ‘the funding approach’; and (iii) ‘the CE approach’.  For these purposes, W argued that HHJ Hess ought to adopt the CE approach given that that vast majority of the CE value of the pension had accrued during the period of the marriage. It was put on behalf of W that this amounted to approximately 91.5% of the CE value. This was argued on the basis that during the period in which substantial payments were being made by H’s company, this dampened other payments which H may otherwise have received from the company. Further, H was the CEO during this period and would have therefore had sway on this. This was suggested as being “a classic example of marital endeavour” ([28]).  Alternatively, H argued that the appropriate way to look at apportionment was ‘the service approach’. Namely, looking at when the service was performed by H leading to the accrual in pension rights. On H’s case, only 14.4% of the pension accrued during the marriage. Or, in the alternative, at most 38.1% owing to company contributions whilst the remaining growth could be attributed to actuarial matters not owing to the marital endeavour.  HHJ Hess reiterated that the Court’s approach however is not to “identify a clear mathematical demarcation lie, where (as here) there is a complicated continuum” ([30]). His Honour went on to make clear that “[a]lthough the mathematical analysis is a helpful and important ingredient, the search for fairness requires a broader weighing of the competing   arguments. In some cases one of the formulaic approaches might seem fairer, in other cases a different formulaic approach might seem fairer and in other cases a blend of approaches might be fairest.” (Ibid). Looking at all the factors holistically, HHJ Hess determined that 55% of H’s pensions had been accrued during the marriage.  The extent / applicability of matrimonialisation  HHJ Hess began by referring to the words of the Supreme Court in Standish v Standish [2025] UKSC 26 on the issue of matrimonial property. By way of reminder, the Supreme Court set out the following:  “Non-matrimonial property is typically pre-marital property brought into the marriage by one of the parties or property acquired by one of the parties by external inheritance or gift. In contrast, matrimonial property is property that comprises the fruits of the marriage partnership or reflects the marriage partnership or is the product of the parties’ common endeavour.”     A clear demarcation was drawn between cash or property and rights in pensions. The latter “rarely become ‘mingled’ during a marriage. They remain in the sole name of the person who earned the pension rights” ([34]). The Court made clear that as well as the actual use and enjoyment of an asset, “a common intention to put the asset into use and enjoyment in the future” may also give rise to matrimonialisation (ibid).  The parties had a conversation in 2013 when W received the gift from her father that the Gloucestershire property was to be placed in their joint names. HHJ Hess accepted W’s evidence that H had said words to the effect of ‘it doesn’t matter that I am not contributing to the purchase price because we will share everything equally in our marriage, everything comes and goes out of the same pot’. Whilst His Honour made emphasised that this broad statement could have been, and likely was, referring to other assets such as H’s company shares, it was of note that no express reference had been made to the pension. This form of wording was not deemed sufficient to have given rise to the matrimonialisation of H’s pension rights. More, His Honour deemed, would be necessary to meet the test in Standish.  The Court’s Conclusion  The Court conducted an evaluation of the s.25 Matrimonial Causes Act 1973 factors, determining that in light of the standard of living which the parties enjoyed during the marriage, the age of the parties and the duration of the marriage and respective contributions, W’s housing needs could be met by remaining at the Bristol property. H would be able to afford something similar if he so chose.  HHJ Hess turned to consider the parties’ respective earning capacities. Given W’s absence from work, her age and her health related issues, and the fact H had substantially decided to retire at the same age W is now, His Honour determined that it would “not be appropriate for met to place into these calculations any figure for an earning capacity and it is reasonable to assume that she will have no earned income in the future.” ([39])  The Court determined that W’s case could not fairly justify a needs claim beyond the level of the sharing claim. A reasonable figure for W to meet her reasonable spending needs fell in the range of £60,000 - £65,000 per annum. A pension sharing order for 27.5% of H’s pension was deemed appropriate, with a lump sum payment from H to W of £724,654. The Devon property was to be transferred to H or be subject to an order of sale with 100% of the proceeds going to H.  Practical Takeaways  <ul class="wp-block-list"> <li>Wanton or reckless dissipation targeted at reducing the other party’s claim is required to meet the high threshold for an add-back</li>  <li>Whilst pensions can be subject to matrimonialisation following Standish, more specificity as to the mingling of the pensions themselves is needed beyond broad acknowledgement of ‘everything coming and going out of the same pot’</li>  <li>Pensions are subject to a holistic fairness assessment, blending mathematical formulae with the broad brush of fairness</li> </ul>  The judgment can be found <a href="https://www.bailii.org/ew/cases/EWFC/OJ/2026/20.html">here</a>.

“Privilege?’ – Not in this Court

Ian Pennock considers the decision in Drake (Margaret) Application for Judicial Review’ [2025] NIKB 70 on when a coroner can compel disclosure of an expert report  Summary  The case arose after a family obtained a psychiatric report on issues central to the death, then declined to disclose it to the coroner when the report proved unhelpful. The coroner issued a notice under section 17A of the Coroners Act (Northern Ireland) 1959 requiring production of the report. The family challenged that decision by way of judicial review.  The High Court upheld the coroner’s decision. It confirmed that a coroner may adopt a “two-stage” approach:  <ol start="1" class="wp-block-list"> <li>first requiring production of a document to the coroner; and</li>  <li>only afterwards deciding whether the document should be disclosed to other properly interested persons (“PIPs”).</li> </ol>  The case is important because it makes clear that there is no automatic immunity for privately commissioned inquest expert reports. Solicitors acting for bereaved families, state bodies and other interested persons should proceed on the basis that an expert report obtained solely for an inquest may have to be produced to the coroner even if the commissioning party later decides not to rely upon it.  Background  The case concerned the death of Stephen Moore, who died in hospital after being found suspended by a shower cord. A central issue in the inquest was whether he had been suffering from delirium, whether staff recognised it, and whether any failure to diagnose or treat it contributed to his death. The coroner had already obtained psychiatric evidence from Professor Palazidou. The Belfast Health and Social Care Trust later obtained its own psychiatric report from Dr Armstrong.  The family considered that Dr Armstrong’s report undermined aspects of the coroner’s expert evidence and sought an adjournment so that they could obtain their own psychiatric evidence. The coroner agreed, expressly stating that she did not yet have a sufficiently clear picture on the central issue of delirium and that additional expert evidence would assist her.  The family then obtained a report from Dr Husain. However, they informed the coroner that they did not intend to rely upon it and would not disclose it. In response, the coroner issued a notice under section 17A requiring production of the report. The family applied for revocation of the notice. When that application failed, judicial review proceedings followed.  Relevant Legislation and Comparison with England and Wales  The case turned on sections 17A and 17B of the Coroners Act (Northern Ireland) 1959, which were inserted by the Coroners and Justice Act 2009.  Section 17A gives a coroner the power to require a person to:  <ul class="wp-block-list"> <li>attend to give evidence;</li>  <li>produce documents or other material; or</li>  <li>prepare a written statement.</li> </ul>  Section 17A also allows the recipient of a notice to apply to revoke or vary it on the basis that the requirement is unreasonable in all the circumstances.  Section 17B preserves ordinary civil law protections. A person cannot be compelled to provide evidence or documents if they could not be compelled to do so in civil proceedings. Public interest immunity principles also continue to apply in the inquest context.  These provisions are closely analogous to the powers available to coroners in England and Wales under Schedule 5 to the Coroners and Justice Act 2009. In practical terms, the powers are materially the same. The importance of Drake is therefore not confined to Northern Ireland. Its reasoning is likely to be influential in England and Wales where coroners are considering whether to compel production of privately obtained expert evidence.  One important feature of the legislation is that sections 17A and 17B concern production of material to the coroner, rather than onward disclosure of that material to other interested persons. That distinction became central to the outcome of the case.  The Earlier Decision in Ketcher and Mitchell [2020] NICA 31  Much of the argument in Drake centred on the earlier Northern Ireland Court of Appeal decision in Re Ketcher and Mitchell.  Ketcher involved soldiers who had died in barracks. The coroner had obtained psychiatric reports. The families obtained their own reports but declined to disclose them. The Court of Appeal held that litigation privilege did not apply because inquests are investigative rather than adversarial proceedings. It followed the reasoning in Three Rivers Distict Council -v- Governor and Company of the Bank of England (No.5) [2005] 1 AC 610  that litigation privilege only applies where proceedings are adversarial in nature.  However, the Court of Appeal in Ketcher had also observed that coroners should be cautious about compelling disclosure of family-commissioned expert reports because doing so might discourage families from obtaining their own evidence in future. Those comments were obiter, but they were relied upon heavily by the applicant in Drake.  The Applicant’s Grounds for Judicial Review  The applicant advanced two principal grounds of challenge.  Ground 1: The Coroner Could Not Adopt a “Two-Stage” Approach  The applicant argued that the coroner had been wrong to treat production to the coroner and later disclosure to PIPs as separate questions.  It was submitted that once the coroner saw the report, onward disclosure to PIPs would become effectively inevitable because the threshold for disclosure in inquests is only “potential relevance”. The applicant argued that the coroner was therefore wrong to assume that she could later revisit the public interest balance after seeing the report.  The applicant further argued that there was no decided authority recognising a public interest in protecting families who commission expert evidence for inquests from later disclosure to other PIPs. It was said that any public interest in encouraging families to investigate a death applied only at the stage of production to the coroner and not at the later stage of onward disclosure.  Ground 2: The Coroner Had Misapplied Ketcher  The applicant also argued that the coroner had wrongly distinguished Ketcher.  It was submitted that Ketcher provided a “strong steer” that coroners should generally decline to compel disclosure where:  <ul class="wp-block-list"> <li>there was already one or more expert report on the issue;</li>  <li>the coroner was prepared to proceed with the existing evidence; and</li>  <li>the family had commissioned an expert report but did not wish to disclose it.</li> </ul>  The applicant contended that those features were all present in Drake. It was also argued that the differences between the reports of Professor Palazidou and Dr Armstrong were relatively limited and that the coroner did not genuinely need to see Dr Husain’s report.  The Coroner’s Decisions  The coroner rejected the family’s arguments and issued the section 17A notice.  She considered that Dr Husain’s report might materially assist with the central issues in the case, particularly in resolving differences between the existing psychiatric experts. She emphasised that the role of delirium in Mr Moore’s death was the key issue in the inquest and that she still lacked a sufficiently clear understanding of several matters, including:  <ul class="wp-block-list"> <li>whether Mr Moore was suffering from delirium;</li>  <li>the causes of that delirium;</li>  <li>whether the causes were treated appropriately;</li>  <li>whether alternative action should have been taken; and</li>  <li>whether healthcare staff properly understood delirium and its causes.</li> </ul>  The coroner considered that Dr Husain’s report might be “more than modest” in significance and potentially very important. However, she stated that she could not properly determine its relevance without reading it.  She also drew a distinction between:  <ul class="wp-block-list"> <li>disclosure to herself; and</li>  <li>disclosure to PIPs.</li> </ul>  She regarded the public interest in withholding a report from PIPs as stronger than the public interest in withholding it from the coroner. She reasoned that a coroner, as an independent judicial figure, is the guardian of the public interest in the inquest and cannot use the material to the detriment of a PIP in later proceedings.  The coroner therefore decided to require production of the report to herself first and to leave the question of onward disclosure for later consideration.  The Decision of the High Court  The High Court dismissed the judicial review.  It held that sections 17A and 17B concern production of material to the coroner and do not govern onward disclosure to PIPs. The court concluded that there was nothing in the legislation preventing a coroner from adopting a two-stage approach. On the contrary, such an approach was entirely consistent with long-established coronial practice.  The court emphasised that coroners have a broad discretion in how they conduct an inquest and that their duty is to investigate the facts “fully, fairly and fearlessly”. The gathering of potentially relevant evidence is therefore central to the coronial function.  The judge also held that the applicant’s fear that disclosure to PIPs would become inevitable was overstated. Even after inspecting the report, the coroner could still decide that it should not be disclosed at all, or should only be disclosed in redacted form, after balancing the competing public interests.  The court held that Drake was materially different from Ketcher because in Drake the coroner had already identified specific areas in which the undisclosed report might assist. She had adjourned the inquest specifically to allow the family to obtain further expert evidence. She had also made clear that the central issue of delirium remained insufficiently resolved.  The court accepted that Ketcher did not create a general rule against disclosure. Rather, it required an individual balancing exercise in each case. The judge warned against creating a special class of documents immune from disclosure merely because they had been commissioned by the next of kin. That, he said, would effectively create a form of privilege which did not otherwise exist in inquests.  The court also noted that such a rule could have serious consequences. If expert reports could simply be withheld from the coroner, it might allow both inculpatory and exculpatory material to remain hidden. In some cases it could distort the course of an inquest or undermine the state’s ability to discharge its Article 2 investigative obligations.  Commentary  The decision in ‘Drake (Margaret) Application for Judicial Review’ [2025] NIKB 70’ is likely to become one of the leading authorities on when a coroner can compel disclosure of an expert report obtained by a family but not intended to be relied upon at an inquest.  Drake is likely to be welcomed by coroners because it reinforces the inquisitorial nature of inquests. It confirms that a coroner’s task is not simply to referee between competing parties but to obtain the evidence necessary to answer the statutory questions.  The decision also reflects a realistic understanding of how modern inquests operate. Although inquests are formally inquisitorial, many of them — especially Article 2 cases —which involve allegations of state responsibility for a death, inevitably involve protection and advancement of interests of PIPs. Families, NHS bodies, police forces and prisons frequently obtain their own expert evidence. In practice, some of that evidence will be helpful and some will not. Drake makes clear that parties cannot assume they may selectively deploy only the material which supports their position.  At the same time, the judgment does contain important safeguards. It does not mean that every report obtained by a family must automatically be disclosed to everyone else. The two-stage approach endorsed by the court means that coroners retain flexibility. They may inspect the report privately, consider whether it is genuinely relevant, and then determine whether onward disclosure is necessary and proportionate.  For solicitors, that may be the most important aspect of the case. The real battleground may no longer be whether the coroner can see a report at all. Instead, it may become whether the report, or parts of it, should later be disclosed to other PIPs.  Practice Points  <ul class="wp-block-list"> <li>Solicitors should advise clients at the outset that a report obtained solely for the purposes of an inquest may later have to be produced to the coroner.</li>  <li>The question of dominant purpose remains important. A report obtained principally for contemplated civil litigation may still attract litigation privilege. A report obtained only for the inquest may not.</li>  <li>If a family wishes to resist disclosure, it is unlikely to be enough simply to rely on Ketcher. Practitioners will need to show why the report is unlikely to add anything meaningful to the evidence already available.</li>  <li>The strongest arguments against disclosure are likely to be case-specific: that the coroner already has adequate expert evidence, that the undisclosed report is unlikely to assist, and that there is a genuine public interest in protecting the confidentiality of the report.</li>  <li>If a section 17A notice is issued, practitioners should make an application to revoke or vary the notice under section 17A(4)(b) before commencing judicial review proceedings. The courts are likely to expect that route to be pursued first.</li>  <li>Solicitors should also focus carefully on the distinction between production and onward disclosure. Even if a report must be produced to the coroner, it may still be possible to argue that it should not be disclosed more widely, or should only be disclosed in redacted form.</li>  <li>Parties commissioning expert evidence should assume that coroners may ask why the report was commissioned, what issue it addresses, and whether it may assist with disputed issues already identified in the inquest.</li>  <li>The clearer the coroner’s reasons for wanting the report, the more difficult it will be to resist production. Drake is especially likely to apply where the coroner has already adjourned proceedings specifically to permit a party to obtain additional expert evidence.</li> </ul>  Ian Pennock is a member of the Inquests and Inquiries Team at Parklane Plowden Chambers His full profile can be accessed <a href="https://www.parklaneplowden.co.uk/our-barristers/ian-pennock/" type="link" id="https://www.parklaneplowden.co.uk/our-barristers/ian-pennock/">here</a>

Plead It or Lose It: EAT Reaffirms Limits on Tribunal Intervention in Whitaker v WRAT & LEG

In Whitaker v WRAT & LEG [2026] EAT 43, the Employment Appeal Tribunal revisits the boundaries of judicial intervention where claimants appear in person. Jessica Ashcroft reviews the judgment and considers its practical lessons for employment practitioners, particularly on raising alternative s.43K routes at the pleading stage. A link to the judgment can be accessed <a href="https://signon.thomsonreuters.com/?comp=wluk&productid=PLCUK&viewproductid=UKWL&lr=0&culture=en-GB&returnto=https%3a%2f%2fuk.westlaw.com%2fCosi%2fSignOn%3fredirectTo%3d%252fLink%252fDocument%252fBlob%252fIE8DD5D60246E11F1A058D0C9CC244311.pdf%253fimageFileName%253dMr%252bA%252bWhitaker%252bv%252bWhite%252bRose%252bAcademies%252bTrust%252b(1)%25252c%252bLuminate%252bEducation%252bGroup%252b(2)%2526targetType%253dinline%2526originationContext%253ddocument%2526transitionType%253dDocumentImage%2526uniqueId%253d142039f6-fcc2-4136-9158-9cd5b9df3458%2526ppcid%253d60edf93dbe134c3fbc4940c155f08f6a%2526contextData%253d(sc.AlertsClip)%2526comp%253dwluk%2526firstPage%253dtrue%26comp%3dwluk&tracetoken=0325261203020sKhGTkzk_RveV3-gr81_x963VIDPXmxX_Eqkx9B19ka5OOfwVkqRQvP_3232MPAt4F0h6qCFw8Pa5m4luedtbK9-lmasArMFfqOD0uNvLIycrY3L9fBfl_qd4FAno2Obq_zux-SVLHeJgEYQjiyfsnzEAit0MNJ60rTP0fNmtYc6WgNvatTmoZxJ3xMf_U3nHHyRa-6ViWUgd9gytiz9Y2Rv9oP_HVtDWfSJxOmTFdMoJeNhJdprDVmTnHDbZ6cj33UOuBzOqoBaZ8PKXa9JfvDb2Op2hfSkEnkiep4rY6NKoVMe_BOn5-llasgLWYmkwu2G_CSzSJup521lyUkO-ymiT-HKX8OFSWOZR6-8KTMXylCMc0K_cnZS7T5JN4vB&bhcp=1">here.</a>  Background  The respondents to the claim were White Rose Academies Trust (“R1”) and Luminate Education Group (“R2”). R1 is a multi-academy trust and R2 was its statutory sponsor.  R1 did not dispute that the Claimant (“C”), who was promoted to CEO of the Trust in 2019, was its employee. R2, however, asserted that he had never been engaged by it as an employee or a worker.  Between January 2024 and March 2025, the Claimant presented three claims against the respondents:  1. 23 January 2024: against both respondents for whistleblowing detriment [C was professionally represented when the claim was presented].  2. 1 July 2024: against R1 only for further whistleblowing detriments and unlawful deduction from wages [C was still professionally represented].  3. 1 March 2025: against both respondents for unfair dismissal, whistleblowing detriments, holiday pay, arrears of pay and other payments [C was unrepresented by the time this claim was presented].  C was professionally represented at the first case-management preliminary hearing (“PH”) on 20 January 2025, but acted in person at the three-day status PH before EJ Armstrong on 7 July 2025. At this hearing, it was determined that C was neither an employee nor a worker of R2 within the meaning of section 230 Employment Rights Act 1996, and dismissed all of his complaints against it.  On 1 September 2025, C issued a Notice of Appeal which raised four key issues for the EAT to decide.  Issues:  1. Could reliance on a section 43K(1)(a) Employment Rights Act 1996, which extends the meaning of “worker” for the purposes of the whilstblowing deteriment provisions, be inferred from the case as pleaded?  2. If not, did the tribunal err in failing to identify and determine a section 43K(1) case even though that was not pleaded?  3. Should the tribunal have considered section 43K(1)(a) as a matter of course?  4. Should C be permitted to run the section 43K argument as a new point in the EAT?  Appeal judgment  The appeal was dismissed.  Issue 1  The EAT concluded [at para 37]: that the pleaded case, on a fair and objective reading, was “the claimant was a section 230(3) worker, and not that he was, in the alternative, a section 43K(1)(a) worker.” The Armstrong Tribunal did not err, therefore, by failing to identify and address a component of the claimant’s pleaded case (Moustache v Chelsea and Westminster Hospital NHS Foundation Trust [2025] EWCA Civ 185 considered and applied).  The Tribunal also relied on previous authorities which held that it is not possible, simultaneously, to be both a section 230 worker and a section 43K worker of the same employer. It found C had advanced a case he was the former, but not the latter in the alternative.  Issue 2  In determining whether the Tribunal should have identified and determined a section 43K(1) component in any event, the EAT concluded that the Tribunal did not err by failing to do so as [at para 49]: “…this is not a case where the section 43K(1)(a) argument and analysis was one which “shouted out” in the McLeary sense, nor that it was for any other reason one in which, in Moustache terms, the fundamental duty of fairness meant that it was “necessary (that is to say, essential)” that the tribunal raise and consider it.”  Issue 3  This case was not in a category in which a point not advanced by a claimant should be considered by the tribunal “as a matter of course”: Langston v Cranfield University [1998] IRLR 172 considered.  [para 56]: “…None of the established examples involves a tribunal being required as a matter of course to consider separate provisions of the statute which the party concerned has not in fact relied upon, and which set out a distinct legal test from that which the case presented to the tribunal requires it to apply.”  Further, the judgment warns that the EAT should be “very circumspect before extending the list beyond those long-established and familiar categories in which the point in question is to be regarded as being ordinarily a sub-strand of the issues falling under the umbrella of the particular statutory provision the tribunal is applying …”  Issue 4  Applying the guiding principles summarised in Secretary of State for Health v Rance [2007] IRLR 665, the EAT also declined to permit the Claimant to run the point for the first time at the appeal stage.  [para 58]: “This is a case where determination of the section 43K(1)(a) issue would…at least have required further evaluative conclusions and determinations by the tribunal, which the EAT is not in a position to do in the same way that the tribunal could, and, potentially, further fact finding, which the EAT could not do at all. I do not consider that the EAT is in possession of all the material that would enable it fairly to dispose of the issue.”  Comment  I anticipate that this judgment will be a welcome clarification for Employment Judges for whom the exercise of ensuring procedural fairness for unrepresented litigants whilst maintaining the Tribunal’s independent arbitral function is often finely balanced. Certainly, the Employment Tribunal process is not perfect, and in certain circumstances there will be a need for the Judge to exercise their discretion and intervene or assist a litigant in person in clarifying the issues in accordance with the overriding objective. This discretion should, however, be treated as just that: a discretion to be used as and when it is required, as opposed to a general duty on the Tribunal to “step into the arena” and suggest or determine issues that have not been pleaded.  The EAT’s analysis as to the weight that it should attribute to the Claimant’s status as a litigant in person is interesting in this respect. The judgment appears unsympathetic to submissions highlighting this status on account of the fact that (a) he had been represented during the pleading stage and when the list of issues was agreed at the initial preliminary hearing, and (b) he appeared to have a sufficient understanding of the relevant statutory provisions, as demonstrated by the content of his pleadings and by the submissions he made at the status hearing, where he appeared without representation.  Practical Takeaways  This more stringent approach and reluctance of the EAT to extend the examples where issues are required to be considered ‘as a matter of course’ has practical implications for practitioners who become involved in such a case at an early stage. The importance of ensuring that potentially relevant arguments are articulated at the outside is clear from the judgment, and will inevitably require a degree of frontloading for both solicitors and counsel in the preparation process. In short, where there is a possible alterantive route to jurisdiction, it should be clearly pleaded as an alternative case. In tripartite arrangements, it is always likely to be sensible for those advising claimants to consider s43K(1).  Further, the relatively little weight attributed to the Claimant as a litigant in person should serve as a caution to claimants who have already received legal representation before appearing as a litigant in person, as the Tribunal’s responsibility to offset any imbalance between the parties may be correspondingly reduced in these circumstances.  Finally, and somewhat disappointingly, although the EAT acknowledged as an “important legal issue” [para 50] the doctrinal question of whether the s. 43K(1)(a) definition requires a contract with the putative employer, it declined to address this point in its judgment.  The judgment is also silent as to the duties and obligations of counsel when acting in proceedings where there is a litigant in person. It was not suggested in this case there was any duty on the respondent to have identified an alerternative claim for the Claimant. Whilst the duty on barrister is not to be impartial in the same way as a judge, the balancing exercise (some might say, tension) between a barrister’s duty to act in the best interests of the client and the overriding duty to the court to act in the interests of justice is not clear cut. However, I am sure I am not alone in saying that guidance on how represented parties should navigate the intersection of adversarial  representation and fairness to unrepresented parties would certainly be welcomed in future judgments.

Adequacy of Reasons: Tim Wilkinson appears in the EAT

Tim Wilkinson successfully responded to an appeal against the dismissal of the Claimant’s interim relief application. The Claimant is pursuing a claim of automatic unfair dismissal pursuant to section 103A of the Employment Rights Act 1996. Employment Judge Sudra refused the Claimant’s application for interim relief in a reserved judgment sent in October 2025.  The Claimant’s expedited appeal came before the EAT in March 2026.  The sole ground of appeal to make it through the sift, and the Rule 3(10) hearing, was whether or not EJ Sudra’s reasoning had been adequate.    In a reserved judgment, HHJ James Tayler has dismissed the appeal.  Whilst the reasoning was ‘brief’, it was sufficient.  In so doing, the EAT has reiterated that the reasons of an ET should be sufficient for the unsuccessful party to understand why he lost.  HHJ Tayler accepted that there is ‘no bright line’ as to what amounts to adequate reasons, and that it is a matter of assessment of the facts in a particular case.  Pertinently, the context of an interim relief application is that the Tribunal is required only to conduct a broad initial summary assessment; it would not be appropriate to make findings of fact.  In that context the judgment, read as a whole, adequately set out EJ Sudra’s reasoning.  His assessment was that, on the evidence available, it was not ‘likely’ (which, in an interim relief application, means ‘pretty good chance’) that the Claimant would establish that the reason or principal reason for his dismissal was a protected disclosure, as opposed to the conduct relied upon by the Respondent.    The judgment can be found at <a href="https://assets.publishing.service.gov.uk/media/69aea155c78869bf8eb8a526/Mr._O._E._Olarewaju_v_Bupa_Care_Services_Ltd__2026__EAT_38.pdf">https://assets.publishing.service.gov.uk/media/69aea155c78869bf8eb8a526/Mr._O._E._Olarewaju_v_Bupa_Care_Services_Ltd__2026__EAT_38.pdf</a>

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