The Court of Protection Rules 2017

Made: 26th October 2017

Laid before Parliament: 30th October 2017

Coming into force: 1st December 2017

The President of the Family Division (the judicial office holder nominated by the Lord Chief Justice), being President of the Court of Protection, makes the following Rules in exercise of the powers conferred by sections 49(5), 50(2), 51, 53(2) and (4), 55, 56 and 65(1) of the Mental Capacity Act 2005 , and in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005 .

PART 1 — THE OVERRIDING OBJECTIVE

The overriding objective	Rule 1.1
Participation of P	Rule 1.2
Duties to further the overriding objective	Duties to further the overriding objective
Court's duty to manage cases	Rule 1.3
The duty of the parties	Rule 1.4
The duty of legal representatives	Rule 1.5
The duty of unrepresented litigants	Rule 1.6

Overriding objective

1.1

• (1) These Rules have the overriding objective of enabling the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Act.

• (2) The court will seek to give effect to the overriding objective when it—

• (a) exercises any power under the Rules; or

• (b) interprets any rule or practice direction.

• (3) Dealing with a case justly and at proportionate cost includes, so far as is practicable—

• (a) ensuring that it is dealt with expeditiously and fairly;

• (b) ensuring that P’s interests and position are properly considered;

• (c) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

• (d) ensuring that the parties are on an equal footing;

• (e) saving expense;

• (f) allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases; and

• (g) enforcing compliance with rules, practice directions and orders.

Participation of P

1.2

• (1) The court must 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.

• (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 2.1.)

Duties to further the overriding objective

Court's duty to manage cases

1.3

• (1) The court must further the overriding objective by actively managing cases.

• (2) The court must manage a case at all times and in particular—

• (a) when a case is referred to a judge;

• (b) at every hearing, whether listed by the court on its own initiative or on application by a party;

• (c) at all stages of a final hearing; and

• (d) when considering enforcement measures including committal.

• (3) Active case management includes—

• (a) considering the appropriate case pathway for the case;

• (b) ensuring—

• (i) that the appropriate judge is allocated to the case;

• (ii) judicial continuity, so far as practicable;

• (c) avoiding delay and keeping costs down;

• (d) encouraging the parties to co-operate with each other in the conduct of the proceedings;

• (e) identifying at an early stage—

• (i) the issues; and

• (ii) who should be a party to the proceedings;

• (f) deciding promptly—

• (i) which issues need a full investigation and hearing and which do not; and

• (ii) the procedure to be followed in the case;

• (g) deciding the order in which issues are to be resolved;

• (h) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate;

• (i) fixing timetables or otherwise controlling the progress of the case;

• (j) considering whether the likely benefits of taking a particular step justify the cost of taking it;

• (k) dealing with as many aspects of the case as the court can on the same occasion;

• (l) dealing with the case without the parties needing to attend at court;

• (m) making use of technology;

• (n) giving directions to ensure that the case proceeds quickly and efficiently;

• (o) considering whether any hearing should be heard in public; and

• (p) considering whether any document relating to proceedings should be a public document and, if so, whether and to what extent it should be redacted.

(Rules 4.2 to 4.4 make provision about the court’s powers to authorise publication of information about proceedings and to order that a hearing be held in public.)

The duty of the parties

1.4

• (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) ask the court to take steps to manage the case if—

• (i) an order or direction of the court appears not to deal with an issue; or

• (ii) if a matter including any new circumstances, issue or dispute arises of which the court is unaware;

• (b) identify before issue if the case is within the scope of one of the case pathways and comply with the requirements of the applicable case pathway;

• (c) 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;

• (d) adhere to the timetable set by these Rules and by the court;

• (e) comply with all directions and orders of the court;

• (f) be full and frank in the disclosure of information and evidence to the court (including any disclosure ordered under Part 16);

• (g) 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 19.5 depart from the general rules about costs in so far as they apply to that party.

(Rule 16.2(2) deals with the requirements of general disclosure.)

The duty of legal representatives

1.5

• (1) Legal representatives of parties are required to help the court to further the overriding objective.

• (2) Without prejudice to the generality of paragraph (1), a legal representative of a party must—

• (a) comply with any applicable rules, practice directions or orders of the court;

• (b) follow (where appropriate) the applicable case pathway; and

• (c) address whether the case can be swiftly resolved.

The duty of unrepresented litigants

1.6

• (1) Without prejudice to the generality of rule 1.4, unrepresented litigants are required to help the court to further the overriding objective.

• (2) This includes—

• (a) engaging with the process applicable in the case and co-operating with the court and the other parties;

• (b) seeking the court’s direction if an issue or dispute arises in the case;

• (c) presenting their case fairly; and

• (d) seeking early resolution of any dispute where practicable.

PART 2 — INTERPRETATION AND GENERAL PROVISIONS

Interpretation	Rule 2.1
Court officers	Rule 2.2
Court officers – authorisation	Rule 2.3
Computation of time	Rule 2.4
Application of the Civil Procedure Rules and Family Procedure Rules	Rule 2.5
Pilot schemes	Rule 2.6

Interpretation

2.1

In these Rules—

• “the Act” means the Mental Capacity Act 2005;

• “accredited legal representative” means a legal representative authorised pursuant to a scheme of accreditation approved by the President to represent persons meeting the definition of “P” in this rule in proceedings before the court;

• “applicant” means a person who makes, or who seeks permission to make, an application to the court;

• “application form” means the document that is to be used to begin proceedings in accordance with Part 9 of these Rules or any other provision of these Rules or the practice directions which requires the use of an application form;

• “application notice” means the document that is to be used to make an application in accordance with Part 10 of these Rules or any other provision of these Rules or the practice directions which requires the use of an application notice;

• “attorney” means the person appointed as such by an enduring power of attorney created, or purporting to have been created, in accordance with the regulations mentioned in paragraph 2 of Schedule 4 to the Act;

• “business day” means a day other than— a Saturday, Sunday, Christmas Day or Good Friday; or a bank holiday in England and Wales, under the Banking and Financial Dealings Act 1971[^f00003];

• “child” means a person under 18;

• “civil restraint order” means an order restraining a party— from making any further applications in current proceedings (a limited civil restraint order); from making certain applications in the Court of Protection (an extended civil restraint order); or from making any application in the Court of Protection (a general civil restraint order);

• “court” means the Court of Protection;

• “deputy” means a deputy appointed under the Act;

• “donee” means the donee of a lasting power of attorney;

• “donor” means the donor of a lasting power of attorney, except where the expression is used in rule 9.8 or 24.4(5) (where it means the donor of an enduring power of attorney);

• “enduring power of attorney” means an instrument created in accordance with such of the regulations mentioned in paragraph 2 of Schedule 4 to the Act as applied when it was executed;

• “filing” in relation to a document means delivering it, by post or otherwise, to the court office;

• “hearing” includes a hearing conducted by telephone, video link, or any other method permitted or directed by the court;

• “judge” means a judge nominated to be a judge of the court under the Act;

• “lasting power of attorney” has the meaning given in section 9 of the Act;

• “legal representative” means a— barrister; solicitor; solicitor’s employee; manager of a body recognised under section 9 of the Administration of Justice Act 1985[^f00004]; or person who, for the purposes of the Legal Services Act 2007[^f00005], is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act), who has been instructed to act for a party in relation to any application;

• “legally aided person” means a person to whom civil legal services (within the meaning of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[^f00006]) have been made available under arrangements made for the purposes of Part 1 of that Act;

• “order” includes a declaration made by the court;

• “P” means— any person (other than a protected party) who lacks or, so far as consistent with the context, is alleged to lack capacity to make a decision or decisions in relation to any matter that is the subject of an application to the court; and a relevant person as defined by paragraph 7 of Schedule A1 to the Act, and references to a person who lacks capacity are to be construed in accordance with the Act;

• “party” is to be construed in accordance with rule 9.13;

• “personal welfare” is to be construed in accordance with section 17 of the Act;

• “President” and “Vice-President” refer to those judges appointed as such under section 46(3)(a) and (b) of the Act;

• “property and affairs” is to be construed in accordance with section 18 of the Act;

• “protected party” means a party or an intended party (other than P or a child) who lacks capacity to conduct the proceedings;

• “representative” means a person appointed under rule 1.2(2)(c), except where the context otherwise requires;

• “respondent” means a person who is named as a respondent in the application form or notice, as the case may be;

• “rule 1.2 representative” means a representative or an accredited legal representative;

• “Senior Judge” means the judge who has been nominated to be Senior Judge under section 46(4) of the Act, and references in these Rules to a circuit judge include the Senior Judge;

• “Tier 1 Judge” means any judge nominated to act as a judge of the Court of Protection under section 46 of the Act who is neither a Tier 2 Judge nor a Tier 3 Judge;

• “Tier 2 Judge” means— the Senior Judge; and such other judges nominated to act as a judge of the Court of Protection under section 46 of the Act as may be set out in the relevant practice direction;

• “Tier 3 Judge” means— the President; the Vice-President; and such other judges nominated to act as a judge of the Court of Protection under section 46 of the Act as may be set out in the relevant practice direction;

• “Visitor” means a person appointed as such by the Lord Chancellor under section 61 of the Act.

Court officers

2.2

• (1) Where these Rules permit or require the court to perform an act of a purely formal or administrative character, that act may be performed by a court officer.

• (2) A requirement that a court officer carry out any act at the request of any person is subject to the payment of any fee required by a fees order for the carrying out of that act.

Court officers – authorisation

2.3

• (1) The Senior Judge or the President or the Vice-President may authorise a court officer to exercise the jurisdiction of the court in such circumstances as may be set out in the relevant practice direction.

• (2) A court officer who has been authorised under paragraph (1)—

• (a) must refer to a judge any application, proceedings or any question arising in any application or proceedings which ought, in the officer’s opinion, to be considered by a judge;

• (b) may not deal with any application or proceedings or any question arising in any application or proceedings by way of a hearing; and

• (c) may not deal with an application for the reconsideration of an order made by that court officer or another court officer.

Computation of time

2.4

• (1) This rule shows how to calculate any period of time which is specified—

• (a) by these Rules;

• (b) by a practice direction; or

• (c) in an order or direction of the court.

• (2) A period of time expressed as a number of days must be computed as clear days.

• (3) In this rule, “clear days” means that in computing the number of days—

• (a) the day on which the period begins; and

• (b) if the end of the period is defined by reference to an event, the day on which that event occurs,

are not included.

• (4) Where the specified period is 7 days or less, and would include a day which is not a business day, that day does not count.

• (5) When the specified period for doing any act at the court office ends on a day on which the office is closed, that act will be done in time if done on the next day on which the court office is open.

Application of the Civil Procedure Rules and Family Procedure Rules

2.5