Injunctions in the Court of Protection – what are the limits?

15 May 2023

The extent of the Court of Protection’s power to grant injunctions has not always been clear, to judges and lawyers alike. Practitioners will recall that in 2022 the Court of Appeal gave judgment in the case of Re G (Injunction) [2022] EWCA Civ 1312, in which it was confirmed that the test for whether to grant an injunction was whether it was ‘just and convenient’ to do so. The court in that case did not, however, have to decide where the limits lay of the CoP’s injunction-granting powers.

HHJ Hilder’s recent judgment in EG and DG v AP and others [2023] EWCOP 15 provides a clear explanation of that.

The case was a dispute about the property and affairs of an elderly woman with dementia. Within the various arguments about validity of lasting powers of attorney, there was a question about whether P had a beneficial interest in a particular property or not. The deputy district judge who heard the matter made an injunction preventing some members of P’s family from disposing of the property in question, effectively to preserve the position whilst that issue was more thoroughly investigated.

HHJ Hilder allowed an appeal. She found the court had no jurisdiction to have ordered as it did. At §66 she pointed out:

…it is not surprising that the Court of Protection cannot cure all ills. It is a specialist court to make decisions for P which P cannot make for herself because of mental incapacity. It is not a court to determine any dispute which happens to involve a person who lacks mental capacity. The courts of all other jurisdictions remain open to persons who lack capacity, and rightly so. The need for a litigation friend is a practical requirement (which may give rise to practical difficulties) but it is not a reason either to favour the incapacitous with an alternative tribunal or to disadvantage them by denying access to ordinary justice.

and

…It does not follow from a concern that P “may have a beneficial interest … which requires preservation and protection” that the Court of Protection has a “responsibility to preserve the status quo.” Preserving a status quo is not a neutral act. It is a significant interference in the rights of someone who may turn out to be fully entitled to the frozen asset. The Court of Protection’s responsibility is to use its proper powers in the best interests of P. Where there is concern that P has a property interest which is denied, the proper power for the Court of Protection to exercise is that which enables the dispute to be determined and P’s interest enforced. It is not a “balance of convenience” matter. It is a question of what power does the Court have.     

What should have happened, accordingly, was that if any litigant wished to argue that there ought to be a hold put on someone else’s ability to deal with the subject property, that person ought to have made an application to the civil court who would be dealing with the substantive dispute, and if necessary sought the interim remedy there.

At §76-77 HHJ Hilder summarised the position thus:

76.    The Court of Protection does not have jurisdiction to determine third party property disputes because it can only make on behalf of P decisions which P could make for herself if she had capacity to do so.   

77.   The Court of Protection may grant injunctions but only in connection with its jurisdiction (s47) or specifically (s16(5)) where necessary and expedient to give effect to a best interest decision made pursuant to section 16(2) of the Act.

This decision is helpful not just to lawyers practising in property and affairs litigation, but also in the many welfare cases where civil rights and obligations arise for determination in a way which impacts on the CoP’s decision-making powers.

An obvious example of that arises from the topical question of care home evictions. The classic situation is one in which a care home has given some sort of notice to P, requiring her to leave, and when the case next comes before the CoP, a litigant in the CoP proceedings asks it to make orders to prevent the eviction happening. Laudable as that might seem at first blush, it is quite plainly outside of the CoP’s powers.

But that does not mean that the parties, and indeed the CoP itself, must sit back and do nothing in a case where P is facing imminent eviction. A range of steps can properly be taken which are focussed on the court understanding the options that are before it – for example:

• Disclosure of key documents (from parties or non-parties) can be ordered. This might include the licence/tenancy agreement and the ‘placement’ contract between a funding public authority and the care provider.
• Evidence as to steps taken or proposed can be ordered.
• Relevant people/bodies can be joined as parties – most notably the care provider themselves, in order that the CoP can properly understand the options available to it and the speed with which alternatives need to be sourced.
• Round-table or advocates meetings between all relevant parties can be directed.
• The court can list for further hearing or hearings, to better understand the issues before it.

A party who feels that a care provider is acting unlawfully – perhaps by pursuing an eviction that would be unlawful within the Protection from Eviction Act 1977, or by breaching the termination clauses in the ‘placement’ contract between a public authority and care provider – can set out to that care provider where they are going wrong and the consequences that will result if a change of tack is not confirmed.

If what is considered to be unlawful action remains proposed by a care provider, then any aggrieved party can bring (urgent) action in the county/high court as is then necessary to attempt to prevent it happening.

There is lots more about this common but sometimes difficult issue here. Sometimes, of course, the circumstances are such that it might be in P’s best interests to move, and to move quickly! But in any situation where that is not so, where a move ought to be planned or where there is a doubt whether it can lawfully occur at all – then a close examination of the matters above is likely to be necessary.

The key point to take from HHJ Hilder’s analysis is that however concerned the CoP judge is about the proposed action of either a party or a third party, it does not necessarily flow that the CoP has jurisdiction to grant injunctions or other orders that limit that party’s civil rights. It is incumbent on practitioners to ensure that the court is not led astray into making orders outside of its jurisdiction.

Ben McCormack is Chair of GCN’s Court of Protection team and Deputy Head of Chambers.

Members of GCN’s Court of Protection team are regularly asked to advise and represent parties in cases involving the intersection between mental capacity and private law property rights.