The Court of Protection Rules 2007 have been replaced by the Court of Protection Rules 2017, which came into force on 1 December 2017. No comprehensive update of the rules has been done since they were first introduced in 2007, with limited updates being made in 2009 and 2011 and more substantial updates being made in 2015. The revocation of the Court of Protection Rules 2007 and the implementation of the new 2017 rules has been described as long overdue in the explanatory memorandum to the Court of Protection Rules 2017 found here (http://www.legislation.gov.uk/uksi/2017/1035/pdfs/uksiem_20171035_en.pdf). It is also said that the changes will strengthen the Court of Protection’s powers to deal with current challenges particularly the increase in caseloads and complexity of cases.
The changes made over and above the consolidation of the previous rules are as follows:-
- The arrangement of the rules in separate parts on the model of the Civil, Family and Criminal Procedure Rules;
- Their arrangement in a different order, which was piloted over 2016 - 2017 by a Practice Direction under the 2007 rules (the Practice Direction - Case Management Pilot), together with the introduction of some new rules in relation to case management and expert evidence which were also piloted in that Practice Direction; and
- The replacement of the rules relating to contempt of Court by fuller freestanding rules.
Arrangement of the rules in a different order and the introduction of some new rules in relation to expert evidence
The overriding objective which is to be applied whenever the Court exercises its powers under the rules is now at the start of the rules, at Rule 1.1 (as per the CPR).
Part 3 now contains the rules relating to the Court’s powers of case management, together with rules about dealing with applications, directions and allocation to the judiciary. A new rule has also been added which makes provision for the allocation of cases to a case management pathway, as follows:-
- Under Rule 3.9 each case shall on issue be allocated to one of the three case pathways:-
- The Personal Welfare Pathway;
- The Property and Affairs Pathway;
- The Mixed Welfare and Property Pathway.
- Practice Direction 3B, which supplements Part 3 of the Court of Protection Rules 2017, provides details of the pathways and this can be found here (https://courtofprotectionhandbook.com/legislation-codes-of-practice-forms-and-guidance/).
- The case will not be allocated if it is an excepted class of case (although the Court may direct that a case be allocated to a case pathway notwithstanding that it is an excepted class of case, as per rule 3.9(5)).
- Details of excepted class of cases are contained within Practice Direction 3B, which supplements Part 3 of the Court of Protection Rules 2017 being:-
- (a) uncontested applications;
- (b) applications for statutory wills and gifts;
- (c) applications made by the Public Guardian;
- (d) applications in Form COPDOL11;
- (e) applications in Form DLA; and
- (f) Schedule 3 applications (under Part 23 of the Rules).
Part 15 contains rules concerning experts, aligning the approach to control of expert evidence by the Court more closely to that taken by the Family Procedure Rules 2010, which was piloted in the Practice Direction - Case Management Pilot. The amendments have been made as follows:-
- Rules 121 to 123 (now rules 15.3 to 15.5) import the Family Procedure Rules' approach of enabling the Court to have greater control over expert evidence and to restrict such evidence to where it is genuinely necessary to assist the Court to resolve the issues in the proceedings.
- The rules now list the matters of which the Court must be satisfied before giving permission for expert evidence (including that the information could not be provided in any other way) (rule 15.3).
- The rules provide that the expert's overriding duty to the Court overrides any duty to the person instructing or paying the expert (rule 15.4).
- Rule 15.5 lists the matters which the Court must consider when deciding whether to give permission for expert evidence in any case.
Rules in relation to costs remain in Part 19. The general rule that costs will be payable by P where proceedings relate to P's property and affairs is now contained at rule 19.2 (rather than the previous rule 156). The general rule that no Order for costs will be made where proceedings relate to P's personal welfare is now contained at rule 19.3 (rather than the previous rule 157).
There does not appear to be any significant changes in respect of costs, however, the following changes appear to have been made:-
- Any mention of success fees and insurance premiums has been removed.
- When considering whether to depart from the general rule due to the conduct of the parties, the conduct of the parties now includes any failure by a party to comply with a rule, practice direction or Court Order (rule 19.5(2)(e)).
- CPR3.12 to CPR3.18 has been specifically dis-applied to Court of Protection matters (Rule 19.6(2)).
- There have been some further changes in relation to the rules about costs in the Civil Procedure Rules to apply (rule 19.6).
The replacement of the rules relating to contempt of Court by fuller freestanding rules
A new Part 21 of the rules is modelled on provisions in the Civil Procedure Rules 1998 (Part 81) and Family Procedure Rules 2010 (Part 37) and now contains comprehensive freestanding provision for proceedings in relation to contempt of Court. Part 21 is broken in to the following sections:-
- Section 1 - scope and interpretation
- Section 2 - committal for breach of a judgment, order or undertaking to do or abstain from doing an act
- Section 3 – contempt in the face of the Court
- Section 4 - committal for interference with the due administration of justice
- Section 5 – committal for making a false statement of truth
- Section 6 – writ of sequestration to enforce a judgment, order or undertaking
- Section 7 - general rules about committal applications, orders for committal and writs of sequestration
- It is important to note that there are new forms accompanying the 2017 rule. Under the provisions of Practice Direction 24C (Transitional Provisions) an application made under the rules using the old forms current on 30 November 2017 will be accepted until close of business on 12 January 2018, or such later date as the Senior Judge may direct. Following this, the new forms will need to be completed.
There are a number of changes made to the rules and it is suggested that you familiarise yourself with the new layout and rules, which can be found here. (http://www.legislation.gov.uk/uksi/2017/1035/contents/made).
Paragon Costs Solutions have a wealth of experience in dealing with Court of Protection costs so please do not hesitate to contact us should you have any queries or require assistance in dealing with the recovery of your Court of Protection costs.