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 Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2026] EWCA Civ 640, 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.