Parallel proceedingsCourt of Protection:Administrative Court, and:parallel proceedingsAdministrative Court:Court of Protection, and:parallel proceedingsAdministrative CourtCourt of Protection:Administrative Court, and:parallel proceedingsAdministrative Court:Court of Protection, and:parallel proceedingsAdministrative CourtCourt of Protection:Administrative Court, and:parallel proceedingsAdministrative Court:Court of Protection, and:parallel proceedingsAdministrative Court
24.6Parallel proceedings will be unusual,
1An example of a combined judicial review and Court of Protection application (albeit not arising out of a refusal to put an option on the table) is R (C) v A Local Authority and others [2011] EWHC 1539 (Admin), [2011] COPLR Con Vol 972. not least because it is not easy to mount a judicial review challenge (in particular given the ever more limited scope of public funding available). The Administrative Court also applies a permission filter significantly more stringently than does the Court of Protection (the filter not even applying in all cases before the latter: see chapter 9). Administrative Court judges will, further, be astute to ensure that cases that should properly be determined within the four walls of the Court of Protection remain there. In
R (DO) v LBH,2[2012] EWHC 4044 (Admin). for instance, permission was refused to the sister of P in concurrent Court of Protection proceedings to bring judicial review applications against decisions of the local authority which had the effect of removing her from caring for her brother and making decisions as to his care arrangements. HHJ Jarman QC (sitting as a Deputy High Court Judge) noted that such questions were ones which the Court of Protection with its expertise was particularly suited to deal with and that judicial review was a remedy of last resort which should only be deployed where (for instance) an application or appeal within Court of Protection proceedings was not available.
24.7However, where a party or parties wish to challenge a failure by a public body to put a particular option on the table, by way of judicial review proceedings, then any delay or increased expense of litigation can be ameliorated to a considerable extent by an early identification of the issues and, if needs be, the matter being listed before a High Court judge who sits both in the Court of Protection and the Administrative Court.
3All High Court judges who sit in the Family Division are entitled to sit in the Court of Protection. Some also hold a ‘ticket’ to sit in the Administrative Court. If the application was being heard by a district or a circuit judge, therefore, it will be necessary to apply to have the matter transferred to be heard before a High Court judge with the relevant ‘tickets’. Detailed directions will also be required to ensure that matters are considered in the right sequence – ie broadly, all the stages of the judicial review first so as to ensure that there is clarity as to exactly what options are before the Court of Protection when it comes to consider where P’s best interests will lie.
24.8Finally, we should emphasise (as did Eleanor King J at first instance in
ACCG) that it is vital that there is clarity in respect of the available options as early as can reasonably be achieved (see also paras 10.19 and 10.41). A failure to identify which options are actually on the table and which are not can lead to a party told at the last minute that an option is not available feeling – quite understandably – that the ‘ground has been cut from under their feet by … the public authorities’ “knock out blow”’.
4[2013] EWHC 3859 (COP), [2014] COPLR 11 at para 46. See also para 102 of the judgment of Sir James Munby P in the Court of Appeal. It may well be the case that the public authority, for good reason, may well not wish to commit itself to a stark statement that ‘option A is not available’ so as to allow room for discussion and the maintenance of a working relationship. However, if the reality is that it is not, it is likely to be better for this to be established sooner rather than later, if for no other reason than a failure to do so will inevitably lead to a prolonging of proceedings – and of consequent expense – which are, on a proper analysis, futile. It is to be hoped that the introduction of the Case Management Pilot (discussed in chapter 4 and chapter 10) will assist significantly in this regard.