Potter Rees Dolan Trust Corporation Ltd v Wl & Anor [2023] EWCOP 19 (10 April 2023)

Background

These proceedings concerned the management of funds awarded in a damages claim in England to a person now habitually resident in Poland.?ML had a property and affairs deputy appointed by the Court of Protection but also a guardian appointed by the Polish District Court in Gdynia.

The proceedings were contentious but in summary, the guardian for ML requested recognition of the Polish order by the Court of Protection and for ML’s assets to be transferred to Poland.

After the hearing, a proposed agreement was reached and although the Court of Protection has yet to confirm the agreement, a number of useful legal points were considered.

The Law

34. Through the intermediary of the International Family Justice Office, the Polish court has provided the following information about the legal position in Poland [E1]:

a.???The Polish Guardian has custody of the person and property of ML, no matter where the property is located.

b.???ML was not given the opportunity to address the Polish court when the guardianship order was made, and there was no legal obligation for the Polish court to have done so.

c.???If the Polish Guardian applies for a further order capable of recognition, the Polish court has no obligation to provide ML with an opportunity to be heard.

d.???The Polish Guardian has not informed the Polish court of any difficulties exercising her powers apart from difficulties resulting from ML's state of health.

e.???Guardianship powers are subject to supervision by the Polish court. If the English court has requests about frequency or content of reports, please let us know.

35. The scope of the jurisdiction of the English Court of Protection is set out at paragraph 7 of Schedule 3 of the Mental Capacity Act 2005 ("the Act"). It is now fully accepted between the parties that paragraph 7(b) applies in this matter: the Court of Protection has jurisdiction over ML's property in England and Wales, and therefore his damages award but since ML is habitually resident in Poland (and not physically present in England and Wales or in need of urgent protection), the Court of Protection does not have jurisdiction in respect of his welfare.

36. It is common ground that the Polish orders in respect of ML are "protective measures" for the purposes of Schedule 3 of the Act, International Protection of Adults. The recognition and enforcement in England and Wales of such measures are governed by Part 4 of Schedule 3 of the Act. A recognition decision is not a "best interests" decision: Re MN [2010] EWHC 1926 (Fam). The limited circumstances in which recognition may be refused are set out at paragraph 19(3) and (4) of the Schedule. In this matter, particular reference has been made to:

a.???paragraph 3(b) and (c) – omission of an opportunity to be heard amounting to a breach of natural justice; and

b.???paragraph 4I – inconsistency of the measure with one subsequently taken by or recognised in England and Wales.

37. Pursuant to Rule 13.2 of the Court of Protection Rules 2017, proceedings may only be withdrawn with the permission of the Court. The decision whether or not to allow withdrawal will be a 'best interests' decision for the Court.

38. The rules as to costs are set out in Part 19 of the Court of Protection Rules 2017. The 'general rule' for proceedings such as these, which concern property and affairs, is set out at Rule 19.2: "… the general rule is that the costs of the proceedings … shall be paid by P or charged to P's estate."

39. However, pursuant to Rule 19.5, the Court may depart from the general rule "if the circumstances so justify". In deciding whether departure is justified the Court will have regard to all the circumstances, including the conduct of the parties, and

(2) The conduct of the parties includes –

(a)??conduct before, as well as during, the proceedings,

(b)???whether it was reasonable for a party to raise, pursue or contest a particular matter;

(c)??the manner in which a party has made or responded to an application or a particular issue;

(d)??whether a party who has succeeded in that party's application or response to an application, in whole or in part, exaggerated any matter contained in the application or response; and

(e)??any failure by a party to comply with a rule, practice direction or court order.Mr Justice Mostyn set out the law in detail in the judgment.?In summary, although the United Kingdom has signed the Hague Convention on the International Protection of Adults, it has only been ratified in relation to Scotland.?The Convention provides a process for obtaining a reciprocal order.

One of the terms of the agreement was:

“The Polish Guardian will undertake to the Court of Protection:

i.????????????to withdraw any complaint she has made in Poland against the English Deputy, the Official Solicitor and any legal representative in these proceedings.

ii.???????????not to pursue or voluntarily support any criminal proceedings in England or Poland against the English Deputy, any other deputy appointed, the Official Solicitor and any legal representative in proceedings relating to ML”.

The Senior Judge was concerned that such an undertaking may not be appropriate as a matter of public policy.?In response to this, Mr Rees explained that the proposed undertaking is "adapted from a form that is regularly provided to the High Court in cases brought under the 1980 Hague Convention on the Civil Aspects of International Child Abduction"; and that "such an undertaking is usually required in order that the Court can be satisfied (when ordering a return) that there will not be reprisals in the country of habitual residence against the parent who has abducted the children." The analogy was sufficient to address the public policy concern.

Findings

The Court of Protection is yet to make a determination on the issues.

Learning points

This case provides a useful summary on the law of recognition and enforcement; specifically that it is not a best interests decision and refusal can only be granted in limited circumstances.

The full case report can be found at https://www.bailii.org/ew/cases/EWCOP/2023/19.html. ????

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