The Court of Protection (CoP) usually sits in public but with reporting restrictions which generally prevent anyone including the media naming the protected party, P, (or any of the other parties who would identify them). The aim is to strike a balance between open justice and a vulnerable person’s right to privacy but has led to criticism in some of the media of a lack of transparency.
In a recent judgment which was largely upheld by the Court of Appeal (Hinduja v Hinduja [2022] EWCA Civ 1492), involving the billionaire Hinduja family, the CoP considered when it would be in P’s best interests to identify him and his family. The Court of Appeal made it clear that this was an exceptional case in view of the public profile of the participants. P and his three brothers had turned the family business into an empire employing over 200,000 people.
Sadly, relations between the oldest brother, Srichand, and his other brothers broke down over two letters signed in 2014 purporting to deal with the brothers’ assets. Srichand then lost capacity and proceedings were brought in the Chancery Division on his behalf by one of his daughters, Vinoo, for a declaration that the letters were invalid.
The day after Vinoo was formally appointed as his litigation friend, one of Srichand’s brothers, Gopichand, issued an application in the CoP against the validity of Srichand’s lasting power of attorney (LPA) in favour of Vinoo and her sister, Shanu, and in respect of contact between Srichand and his brothers. The application was largely resolved in March 2021 when the daughters disclaimed the LPA, after disclosing that they had used Srichand’s funds to pay their costs of the litigation and other costs, and the court appointed a solicitor deputy and made orders about Srichand’s care and contact with his family. At the time, Srichand was seriously unwell and not expected to live long.
Srichand recovered but nothing more happened in the CoP proceedings until Gopichand sought a partial lifting of the reporting restrictions in May 2022 to allow him to correct what he said were misleading assertions by the daughters in the Chancery proceedings. Before his application was heard, however, the Chancery proceedings settled. By the time the CoP heard the application in August 2022, Gopichand’s position had changed and he argued that the reporting restrictions should remain, as did the daughters. The Official Solicitor, Srichand’s litigation friend, sought their removal.
The CoP considered that the reporting restrictions had worked against Srichand’s best interests. The high profile of the family had effectively led to a media blackout for fear of inadvertently identifying the family and breaching the restrictions. The judge felt that the lack of publicity had harmed Srichand by enabling his family’s conduct to go under the radar. By this point, Srichand had been in hospital for over a year, much of the time after he was ready for discharge, due to “conflict within the family concerning the financing of his care package”. The judge felt that, had the media been able to report the case, this would not have happened. The judge considered that Srichand’s rights and the press’ rights to freedom of expression were aligned in this case and lifted the reporting restrictions. The family appealed.
The Court of Appeal largely upheld the CoP’s decision. It held that the family’s conduct in relation to Srichand including regarding the LPA and about his care were matters of public interest and that the reporting restrictions effectively blocked any reporting of the proceedings. The judge was entitled to give more weight to what he felt were the benefits of publicity to Srichand and less weight to the fact that he had been a private person in the past. However, the Court of Appeal felt that the CoP had gone too far in lifting the restrictions and reinstated them in respect of Srichand’s (and his wife’s) health and care, unless published in a judgment, as there was no public interest in reporting these issues.
Although this case was exceptional, it shows that the court will not shy away from naming P and his family when it feels that it is in his best interests to do so.
Charlotte Watts, Partner at Wilsons Solicitors LLP
