The principle of “open justice” is a cornerstone of the English legal system, ensuring that courts remain transparent and accountable to the public. However, when cases involve highly vulnerable individuals, this transparency can sometimes threaten their fundamental right to privacy.
In the recent landmark ruling of Re Gardner [2026], the Court of Appeal was forced to address a critical question: where exactly should we draw the line between public interest and personal privacy in the Court of Protection?
Why does this case matter?
Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2026] EWCA Civ 640 is a timely reminder that transparency in the Court of Protection is a carefully calibrated tool which protects the integrity of the process, and should only be permitted to the extent necessary, and never at the expense of the vulnerable people the jurisdiction exists to protect.
The Court of Appeal’s decision in Re Gardner is a significant corrective on the limits of transparency in Court of Protection proceedings. Overturning Mr Justice Poole’s earlier ruling, the Court of Appeal held that an observer’s right to understand a case does not extend to unrestricted access to the parties’ position statements.
What was the case about?
The case arose from proceedings concerning a man who had suffered catastrophic brain injury and whose family disputed the validity of his advance decision to refuse treatment. Professor Kitzinger sought disclosure of position statements (the documents solicitors prepare summarising each party’s case), so she could better understand and report on how the proceedings had unfolded. The trial judge granted her request reasoning that the proceedings were effectively public and that disclosure would serve the open justice principle.
Are Court of Protection proceedings really “public”?
The Court of Appeal disagreed with the decision that the proceedings were effectively public. It held that Court of Protection proceedings are private by default, even when a hearing is held in public under a transparency order. That order permits scrutiny of the hearing itself, subject to anonymity protections, but it does not transform the underlying proceedings into public litigation, and it does not entitle observers to the documents being prepared behind the scenes.
Does that mean observers get no access at all?
No, but disclosure of position statements to non-parties requires specific court authorisation, and the court must weigh the observers’ reasons for wanting access against the often highly personal nature of the material and its impact on the individual’s rights under Article 8 of the European Convention on Human Rights. Curiosity, research or educational interest without more justification will not be enough to tip the balance.
So, is transparency just symbolic?
No, the Court of Appeal was careful to affirm that open justice remains a vital principle in this jurisdiction. But it drew a firm distinction between transparency that allows the public to understand how the court reaches its decisions, and unrestricted access to the raw material underpinning those decisions. As the court put it, the Court of Protection exists for the protected person’s benefit, and “transparency must support justice, not overwhelm it.”
What should practitioners do differently now?
The judgment offers practical guidance for the interim, pending formal rule changes. It was suggested that the court should generally consider disclosing short, neutral documents such as case summaries and chronologies to observers, rather than full position statements which often contain sensitive and sometimes contested material. Any request for fuller disclosure should be raised early, decided by the judge rather than left to the parties, and resolved without derailing the substantive hearing.
Contact a Specialist Court of Protection Solicitor
Understanding the rules around transparency and privacy in Court of Protection proceedings can be incredibly complex. You may be wondering how this ruling affects a current case, or you might have concerns about protecting a loved one’s highly sensitive, personal information during a legal dispute. While the courts strive to balance open justice with individual privacy, it is vital to ensure that the fundamental rights of vulnerable individuals are protected at all times.
If you have any questions in relation to transparency orders, document disclosure, or how Court of Protection proceedings might impact you or your family, we are here to help. Please do not hesitate to contact one of our experienced Court of Protection Solicitors or get in touch on 020 8492 2290.
