COURT OF PROTECTION UPDATE 2015

23 MARCH 2015

THE NEW RULES: WHAT

YOU NEED TO KNOW

William East

COURT OF PROTECTION UPDATE 2015

INTRODUCTION

1.

The Court of Protection (Amendment) Rules 2015 (the

Amendment Rules) were made on 4 March 2015 and were laid
before Parliament on 9 March 2015.

2.

The Amendment Rules introduce new rules to and amend a

number of rules in the existing Court of Protection Rules 2007
(the Rules). There are a number of important changes. Added
to this, various additions and amendments have been made to
the practice directions. This talk will highlight what I regard as
being the most important changes to the rules. Inevitably in
the time available (15 minutes) only some of the rules can be
covered and reference should be made to the full rules when
they come into force. The changes I would like to highlight are
as follows (they are taken mostly in order of their appearance
in the rules):
(a)

Significant new rules regarding the participation of P in

proceedings;

(b)

New detail on how parties are to carry out their duty to

further the overriding objective;

(c)

The application of the CPR and FPR 2010 and the

introduction of CoP-specific rules regarding security for
costs and service out of the jurisdiction;

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COURT OF PROTECTION UPDATE 2015

(d)

The move away from separate permission forms and the

abolition of the permission requirement in property and
affairs cases;

(e)

Shortening

of

periods

for compliance

with certain

procedural steps;
(f)

Introduction of a requirement to obtain permission to

withdraw applications.

WHEN DO THE RULES COME INTO FORCE?

3.

Before moving on to the rules themselves, a word on

commencement. Unfortunately, the new and amended rules
come into force at different times. Rules 2 and 66 of the
Amendment Rules defines what happens when. Some of the
rules come into force on 6 April 2015, whilst others come into
force on 1 July 2015. Others still come into force on 1 July
2015, but only apply in relation to applications and applications
made within proceedings on or after that date. I have tried to
note when each change comes into effect in each section.

PARTICIPATION OF P
Comes into force: 1 July 2015
4.

The major and most interesting change relates to the

participation of P in proceedings. The Amendment Rules
introduce a new Rule 3A, which reads as follows:
3A. Participation of P

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(1) The court shall in each case, on its own initiative or

on the application of any person, consider whether it
should make one or more of the directions in
paragraph (2), having regard to
(a) the nature and extent of the information before the
court;
(b) the issues raised in the case;
(c) whether a matter is contentious; and
(d) whether P has been notified in accordance with the
provisions of Part 7 and what, if anything, P has said or
done in response to such notification.
(2) The directions are that
(a) P should be joined as a party;
(b) P's participation should be secured by the
appointment of an accredited legal representative to
represent P in the proceedings and to discharge such
other functions as the court may direct;
(c) P's participation should be secured by the
appointment of a representative whose function shall
be to provide the court with information as to the
matters set out in section 4(6) of the Act and to
discharge such other functions as the court may direct;
(d) P should have the opportunity to address (directly
or indirectly) the judge determining the application
and, if so directed, the circumstances in which that
should occur;
(e) P's interests and position can properly be secured
without any direction under sub-paragraphs (a) to (d)
being made or by the making of an alternative
direction meeting the overriding objective.
(3) Any appointment or directions made pursuant to
paragraph (2)(b) to (e) may be made for such period or
periods as the court thinks fit.
(4) Unless P has capacity to conduct the proceedings,
an order joining P as a party shall only take effect
(a) on the appointment of a litigation friend on P's
behalf; or
(b) if the court so directs, on or after the appointment
of an accredited legal representative.
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COURT OF PROTECTION UPDATE 2015

(5) If the court has directed that P should be joined as

a party but such joinder does not occur because no
litigation friend or accredited legal representative is
appointed, the court shall record in a judgment or
order
(a) the fact that no such appointment was made; and
(b) the reasons given for that appointment not being
made.
(6) A practice direction may make additional or
supplementary provision in respect of any of the
matters set out in this rule.
(The appointment of litigation friends, accredited legal
representatives and representatives under paragraph
(2)(c) is dealt with under Part 17.)
(Accredited legal representative is defined in rule
6.).

5.

One aim of this rule it appears is to set down in more detail

how the court should approach the question of whether and
how P should be involved in proceedings. Sub-rule (1) lays out
a series of considerations for the court to take into account
when deciding what directions to give on this topic. As these
considerations include the nature and extent of the information
before the court and the issues raised in the case, a wide
variety of material may be relevant to this decision.

6.

Sub-rule (2) defines the principal sorts of directions that can be

made, from the joinder of P as a party to P having the
opportunity to directly address the judge determining the
application. One innovation is the potential for an accredited
legal representative (ALR) to represent P in the proceedings in
distinction to the appointment of a litigation friend. ALRs will

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COURT OF PROTECTION UPDATE 2015

be legal representatives who are authorised pursuant to a

scheme of accreditation approved by the President of the Court
of Protection. ALRs can be appointed to represent P on a
temporary basis or throughout the proceedings. Practice
Direction 2A sets out a lot more detail about ALRs. In
summary:
(a) Such representatives can be appointed whether or not P
is joined as a party;
(b) PD 2A considers that they may be of assistance where
urgent orders are needed, particularly if the urgent
orders are likely to have an impact on the final orders
(e.g. an urgent order relating to residence);
(c)

Where P lacks capacity to conduct the proceedings and is

made a party, an accredited legal representative is not
intended as a substitute for a litigation friend, but as an
alternative in a suitable case (or in the early stages of the
case);

(d) The factors relevant to the choice between appointing a

litigation friend and an ALR where P lacks capacity to
conduct the proceedings include whether there will be a
need for expert or other evidence to be obtained and
filed, or other material gathered, on Ps behalf, the
nature and complexity of the case and the likely range of
issues.
7.

In distinction to the appointment of an ALR or litigation friend,

Rule 3A (2) (c) envisages that in some cases Ps participation

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COURT OF PROTECTION UPDATE 2015

could be secured by a representative who can speak to the

matters under s. 4 (6) Mental Capacity Act 2005 (MCA 2005)
(including Ps past and present wishes and feelings). PD 2A
mentions that such representatives could include a friend, an
Independent Mental Capacity Advocate, an advocate appointed
under the Care Act 2014, a family member or anyone with
relevant knowledge.
8.

The court can also decide that Ps interests and position can be
secured without without any direction for the appointment of a
litigation friend, an ALR, an alternative representative or for P
to address the judge, or through an alternative direction (Subrule (2) (e)).

9.

The Amendment Rules insert a new rule, Rule 41A, which

requires P to be notified (a) where a direction has been made
under Rule 3A relating to his or her participation and (b) of the
appointment of a litigation friend, ALR or representative on his
or her behalf. This comes into force on 1 July 2015.

10.

In tandem with the introduction of new Rule 3A, the

Amendment Rules also substitute an entirely new Part 17 (Part
17 previously dealt just with the appointment of litigation
friends but the new version will also deal with the appointment
of Rule 3A representatives). The significant points here are as
follows:
(a)

A person may act as an ALR or as a representative for P

if that person can fairly and competently discharge his
or her functions on behalf of P: new Rule 147. This does

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not include the additional requirement which applies in

relation to litigation friends, namely that they have no
interest adverse to P (or the child or protected party
they act for if not for P). However, it may be that there
is no much difference since adverse interests may mean
that an ALR or

representative

cannot

fairly

and

competently discharge his or her functions on behalf of

P.
(b)

A court can make an order appointing a representative

or ALR on behalf of P, substitute the ALR/ representative
for someone else or terminate their appointment on its
own initiative or on the application of any person and at
any stage of the proceedings.

(c)

New Rule 148A allows the ALR or representative to

apply to court for directions regarding the performance,
their terms of appointment or continuation of their
appointment.

DUTY OF THE PARTIES TO FURTHER THE OVERRIDING

OBJECTIVE
Comes into force: 1 July 2015
11.

The Amendment Rules insert a new version of rule 4, which

previously simply required the parties to further the overriding
objective. This is retained in the new rule, which adds further
details and reads as follows:

4. The duty of the parties

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(1) The parties are required to help the court to

further the overriding objective.
(2) Without prejudice to the generality of paragraph
(1), each party is required to
(a) co-operate with the other parties and with the
court in identifying and narrowing the issues that
need to be determined by the court, and the
timetable for that determination;
(b) adhere to the timetable set by these Rules and by
the court;
(c) comply with all directions and orders of the court;
(d) be full and frank in the disclosure of information
and evidence to the court (including any disclosure
ordered under Part 16);
(e) co-operate with the other parties in all aspects of
the conduct of the proceedings, including in the
preparation of bundles.
(3) If the court determines that any party has failed
without
reasonable
excuse
to
satisfy
the
requirements of this rule, it may under rule 159
depart from the general rules about costs in so far as
they apply to that party.
(Rule 133(2) deals with the requirements of general
disclosure.)

12.

The new rule therefore provides further detail as to how the

parties are expected to act, including by being full and frank in
the disclosure of information and evidence to the court, and
that if they do not act in the manner envisaged, the court may
depart from the general rules about costs.

APPLICATION

OF

CIVIL

PROCEDURE

RULES/

FAMILY

PROCEDURE RULES, REDUCTION OF CASES WHERE THIS

NEEDS TO BE USED
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13.

Rule 9 of the Rules currently provides that in any case not

expressly provided for by the Rules or the practice directions
made under them, the CPR would apply with any necessary
modifications, insofar as is necessary to further the overriding
objective. Rule 9 of the Amendment Rules substitutes a new
rule which allows the court to apply wither the CPR or the
Family Procedure Rules 2010, including the practice directions
made under them. This comes into force on 1 July 2015.

14.

This will provide a wider choice for rules for the court to resort
to in the event that the Rules themselves do not assist. Rule 9
of the Amendment Rules also helpfully clarifies that a
reference in the Rules to the CPR 1998 or the FPR 2010 is to
the version of those rules in force at the date specified in the
relevant practice direction. The relevant practice direction
(Practice Direction 3C, which comes into force on 6 April 2015)
states that the versions concerned are those which are in force
on 6 April 2015.

15.

Of course, having recourse to the CPR or FPR where the rules

do not deal with a situation which comes up is not always ideal,
since it means that practitioners need to refer to those rules
and

decide

how

they

could

apply

with

any

necessary

modifications, rather than being able to refer to the Rules as a

self-contained code.

Further, sometimes the rules explicitly

incorporate other rules but with express modifications. The

worst example of this is the rules on costs in Part 19, which
make painstaking changes to the rules contained in the CPR on
costs and require extensive cross-reference to be understood
(see Rule 160).
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16.

However, there does appear to be a move towards including

further provision within the Rules to enable this to be more of
a reality. Examples are the inclusion of a self-contained code
for service out of the jurisdiction in the new version of Rule 39
and new Rules 39A to 39H (these are inserted by Rule 16 of
the Amendment Rules and come into force on 1 July 2015, see
also Practice Direction 6B), and for applications for security for
costs under new Rules 81A to 81D (modelled on the CPR
provisions, they come into force on 1 July 2015).

THE

MOVE

AWAY

FROM

SEPARATE

PERMISSION

APPLICATION FORMS AND ABOLITION OF PERMISSION

REQUIREMENT IN PROPERTY AND AFFAIRS CASES
Various rules dealing with this come into force on 1 July 2015, but
only in relation to applications made after that date
17.

Various amendments to the Rules deal with the move away

under the new rules from the need to complete a separate
permission form in cases where permission is required. The
court will now consider both permission and initial directions
in

relation

to

the

application

at

the

first

stage.

See

amendments/ deletions to Rules 10, 54, 55-59, 61, 64-65, 84

and 120.
18.

Under the current rules, permission can be required in some

property and affairs cases (for example, applications under
section 36 (9) Trustee Act 1925 for permission to appoint a
new trustee by some persons and applications for statutory
wills by some persons). Rule 51 (2) (a) sets out the general rule

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that permission is not required to issue a property and affairs

application, but that this is subject to the exceptions set down
in Rule 52.
19.

The Amendment Rules abolish the need to apply for permission

in any property and affairs case (see Rules 22 and 23 of the
Amendment Rules). This comes into force in relation to
applications made on or after 1 July 2015.

SHORTENING OF TIME PERIODS

20.

Various parts of the Amendment Rules shorten the time periods

for undertaking certain procedural steps with a view to
speeding up proceedings. All of these changes come into effect
on 1 July 2015. In general, the time period is reduced from 21
to 14 days. The time periods which are shortened include the
time for:
(a) Notification of P under Rule 46;
(b) Service of the application form on respondents together
with associated documents under Rule 66;
(c)

Service of applications relating to the validity and

operation of Lasting Powers of Attorney under sections
22 and 23 MCA 2005 under Rule 67;

(d) Service of applications relating to Enduring Powers of

Attorney under Rule 68;

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(e) Notification of persons required to be notified of the

application under Rule 70;
(f)

The service of an acknowledgement of service or

notification in response to an application, where a person
wishes to take part in proceedings (Rule 72). Note,
however, that the person responding is now given 28
days from service of the application (rather than the
present 21 days) to file witness evidence.

(g) Service of applications under Rules 143-144 relating to

litigation friends.
REQUIREMENT

OF

PERMISSION

TO

WITHDRAW

APPLICATIONS
Comes into force: 1 July 2015
21.

The Amendment Rules insert a new Rule 87A requiring the

courts permission to withdraw proceedings.

22.

An application to withdraw proceedings must be made under

the existing rules for applications within proceedings, which
are contained

within

Part

10

of

the

Rules. Under

an

amendment to Rule 77 of Part 10, which introduces a new Subrule (5), the person solely seeking such permission must (a) file
a written request for permission setting out succinctly the
reasons for the request, (b) the request must be in an
application notice and (c) the court may permit an application
to be made orally or in such alternative written form as it
thinks fit.
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weast@5sblaw.com
William East 2015

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