WHAT IS THE CASE MANAGEMENT PILOT?
The case management pilot is a scheme which has been in place since 1 September 2016 in the Court of Protection. It is scheduled to run until 31 August 2017, though, if successful, we envisage that it will be implemented on a more permanent basis. It is an attempt to manage the Court's rapidly growing caseload in a more streamlined manner.
It will apply to certain types of cases in which the initial application is made to the court on or after 1 September 2016.
WHAT IS THE AIM OF THE CASE MANAGEMENT PILOT?
The key intentions behind the introduction of the pilot are:
- To force potential applicants to provide better analysis of the issues and to consider whether these can be resolved without involving the court;
- To force applicants to provide better information at the start of the case;
- To reduce the number and length of hearings by providing for more robust case management at the outset;
- The intention of this is that it is envisaged that the system will be more streamlined and costs can be kept down.
SCOPE OF THE CASE MANAGEMENT PATHWAYS
The Pilot provides for each case started in the Court of Protection after 1 September 2016 to be allocated to one of three case management pathways when the case is issued, unless the case falls within one of the exempted types of cases (outlined below). The three new case management pathways are:
1. The Personal Welfare Pathway
This will be the normal pathway for a case in which an application is made to the Court to make or authorise one or more decisions relating to P's personal welfare only.
2. The Property and Financial Affairs Pathway
This is the normal pathway where the Court needs to make one or more decisions relating to P's property or financial affairs only.
3. The Mixed Welfare and Property Pathway
This will be the normal pathway where the Court needs to make one or more decisions relating to P's property or financial affairs as well as P's personal welfare.
Certain types of cases are specifically excluded from the Case Management Pilot:
- Uncontested applications;
- Applications for statutory wills and gifts;
- Applications made by the Office of the Public Guardian;
- Applications relating to serious medical treatment (for which Practice Direction 9E makes specific provision);
- Applications in form COPDOL10 (in other words the Court's streamlined process for authorising deprivation of liberty);
- Applications in form DLA (applications to terminate or vary a standard or urgent authorisation for deprivation of liberty made by a supervisory body).
This article will focus on the personal welfare pathway.
THE PERSONAL WELFARE PATHWAY
The Personal Welfare Pathway breaks the case management process down into 6 key stages:
- The pre-issue stage;
- The point at which the application is issued;
- Case management on issue;
- The Case Management Conference;
- The Final Management Hearing; and
- The Final Hearing.
1. PRE-ISSUE STAGE
An important part of the Pilot is that it forces the Parties to work together as far as possible before proceedings are issued, to ensure that all Parties are involved, the issues are clearly identified, and (if possible) there is a more focused opportunity to try to resolve the matter without the need to go to Court.
The onus will be on any potential applicant to try to get as many of the issues between the Parties identified and resolved before involving the Court. That way the Court will only be asked to adjudicate and consider the issues which remain as points of disagreement. It is intended that by front loading the process, issues will be resolved more swiftly and that this will reduce the need for multiple hearings and help in keeping costs down. It may be that ultimately the Parties will be able to resolve the issues without the need for Court intervention at all.
The pre-issue stage is a similar concept to the pre-action stage in a Judicial Review case where there is a formal attempt to resolve the matter prior to any Court proceedings being issued.
In the pre-issue stage, the Case Management Pilot outlines that the applicant must take various steps to try to resolve issues prior to issuing proceedings including identifying all potential parties to the proceedings and notifying them of the applicant's intention to start proceedings unless the matters in dispute can be resolved. The applicant should also explain to the potential parties what the court process entails, which issues it is asking the Court to decide upon and how the applicant thinks those issues can be resolved without the need for involving the Court. The applicant must then work with those notified to try to resolve those matters as far as possible. In this way the pilot encourages the parties to work together to make an application to Court a last resort. The Court will expect any applicant to be able to show that it has tried to engage with those Parties to formally resolve matters so that only those issues which remain truly in contention come before the Court.
2. THE POINT OF ISSUE OF THE APPLICATION
The application should reflect the progress made pre-issue. The case management pilot sets out a requirement for various information and documentation to be included (or referred to) within the application. Much of this is captured as a matter of course within the pre-existing court forms so the requirements of this stage do not drastically change the previous position.
Where an application is urgent, the applicant is required to include an explanation of (i) why the case is urgent and the consequences which will follow if the case is not dealt with urgently, (ii) any pre-issue steps which have not been taken, why, and what the consequences would be in taking them, and to identify and separate the issues which are urgent from those which are not urgent.
3. CASE MANAGEMENT ON ISSUE
Following the issue of the application, the papers will be placed before a Judge who will allocate the case to the correct level of Judge / Court, and will make any initial case management Directions.
The Judge will also list the case for a Case Management Conference within 28 days (unless the matter is urgent), and provide any Directions to ensure that the Case Management Conference is utilised properly. The 28 day deadline is a new feature brought in by the Pilot to help speed up progress. It gives the Judge the chance to manage the process in an active way from the outset. The Judge will also consider issues such as who should be joined as a Party or invited to the Case Management Conference, litigation friends and funding for P, who should create the core bundle (which must not exceed 150 pages unless the court directs it) for the Case Management Conference and whether an Advocates meeting should take place before the Case Management Conference in a further attempt to secure agreement as far as possible.
4. CASE MANAGEMENT CONFERENCE
The Case Management Conference is used by the Court to identify and understand what the real issues in dispute are and to consider whether they can be narrowed before the final hearing. It is also an early opportunity for the Court to exercise its case management powers to direct how the case should be conducted going forward, including setting a timetable for all the steps up to trial. There are some specific measures that the Court must consider to try to save costs including whether a section 49 Report (which the Parties do not have to pay for) could achieve a better result than use of an Expert and in general the Court is required to try to give directions that will help resolve matters justly and at proportionate cost. The Court will also consider issues such as whether a best interests meeting is required, whether a litigation friend is required for P, and if so, who is to be the litigation friend and whether there should be a public hearing. This is also the stage at which the Court may declare that the Official Solicitor can be appointed as litigation friend of last resort.
5. FINAL MANAGEMENT HEARING
A final management hearing will be listed to enable the Court to determine whether the case can be properly resolved at that stage, or if not, to ensure that the final hearing is properly prepared giving directions as necessary for that purpose. Prior to the Final Management Hearing, the Court requires a meeting between Advocates and as far as possible any unrepresented Parties 5 days before. The purpose of the meeting is to resolve or narrow the issues to be determined at the final case management hearing. The Court will also require a bundle to be filed 3 days prior to the hearing. If any requirements have not been complied with in connection with the case generally, the Court will consider whether to adjourn the hearing, and if it does so will consider whether it needs to make an order for costs. It is imperative that directions and the case management objectives are therefore complied with as far as possible to avoid costs penalties
6. THE FINAL HEARING
Again the Court will direct that there should be a meeting between Advocates and so far as possible unrepresented Parties five days before the Final Hearing. Again the purpose is to resolve or narrow the issues to be determined at the Final Hearing. The Court will make directions for filing the bundle and again has the power to order costs sanctions where requirements have not been complied with.
The purpose of the new requirements included in the pilot is to try to ensure that an application to the Court is a last resort. The Court of Protection wants to see you as little as you want to see it. As such there is a strong emphasis on formally trying to resolve issues so that issuing proceedings can be avoided if at all possible. Likewise there is a continuous focus on trying to resolve or narrow the issues at every step of the way prior to final hearing by way of the various case management procedures. Full details of the requirements are available online as well as information about the other pathways.