Georgia Bedworth successful in latest case on service in the Court of Protection
19th Mar 2024
Georgia Bedworth represented the Official Solicitor in BH v JH [2024] EWCOP 12, the latest reported decision on the service rules in COPR 2017 PD 9E and the only reported decision to consider the meaning of the requirement to serve a party “materially” affected by the application. The case concerned an application to vary a statutory will, increasing a legacy held on discretionary trusts for the benefit of, amongst others, P’s carers and correspondingly reducing the residuary gift which passed on charitable trusts. P’s deputy maintained that no one needed to be served under COPR 2017 PD 9E paragraph 9, which requires service on those “likely to be materially or adversely affected by the application”.
In a careful judgment, the Judge reiterated the key principles governing service in Court of Protection proceedings, noting their foundation in procedural fairness, and accepted the Official Solicitor’s submissions on every issue:
- The word “materially” does not mean that the effect of the change must be negative, since “adversely” already connotes a negative effect on the beneficiary. The service requirement, therefore, also applies to beneficiaries whose position is improved by the variation.
- On the facts, however, it was appropriate to dispense with service on P’s carers to avoid disruption to P’s care.
- In relation to the charities, there were no “exceptional circumstances” justifying dispensing with service. The fact no individual charities were named in the will was not a compelling reason to dispense with service. The application could be served on the Attorney General, which would allow for representations to be made on the diminution to the charitable provision.
In light of the Deputy’s position in maintaining that service was not required, the Official Solicitor applied for the Deputy to pay the costs. In a separate judgment, the Judge accepted that it was appropriate to depart from the general rule that costs of property and affairs proceedings are paid by P (COPR r. 19.2) and ordered the deputy to pay costs of the service issue from a particular date.
The judgment on the service issue is available here, and the judgment on costs may be accessed here.
Georgia Bedworth
Call 2001
