In the matter of Re PR [2016] EWCOP1 the Court of Protection refused the appointment of a professional property and affairs Deputy where there was an appearance of bias towards one party in the proceedings. 

This case involved a contested application for the appointment of a Deputy for ‘P’.  P has four children from his first marriage and one child – ‘Z’ – from a subsequent marriage.  Z contacted a firm of solicitors and instructed them to make an application to the Court of Protection for a professional Deputy for P. 

Z’s solicitor (and a partner in that firm) was put forward as the proposed professional Deputy.  P’s four children from his first marriage objected to that appointment initially on the basis that a professional Deputy’s input would not be justifiable in terms of costs and expressing a preference for the appointment of a family member instead.  Subsequently, a more serious concern was raised about the solicitor’s position as representative of Z and whether there was any apparent bias in the proposed arrangement. 

It is understood that the proposed professional Deputy made some allegations in the initial Court application about P’s four children (on Z’s behalf/instruction) about their historic conduct and was  described as having painted a particularly positive picture of Z which contrasted with the evidence put forward about other members of the family. 

The solicitor was cited as commenting that the wider family had “intermeddled with P’s estate and not even managed to oversee a simple residential conveyancing on his behalf”.  Counsel acting for the wider family suggested that “a fair minded and informed observer would conclude there was a real possibility of bias in this case, where there are contested allegations of serious financial misconduct by both the applicant and the respondents and where…[the proposed professional Deputy]…had previously firmly take the side of, and acted on behalf of…[Z]”.

The Court was referred to a decision of Senior Judge Lush where he devised a ‘balance sheet approach’ for considering two completing applicants (Re: M; N v O and P [20130 COPLR 91].  That approach has been used by the Court in the past to analyse the strength and weaknesses of completing Deputyship applicants and comprises of a non-exhaustive list of considerations – such as a willingness and ability to act, qualifications and conduct before and during the proceedings – to assist in making a determination on appointment.

In this case, Senior Judge Lush did not believe that his ‘balance sheet approach’ would work when applied to the specific facts.  The wider family initially disputed the appointment of any professional Deputy but subsequently conceded the point, if the professional was unconnected with the case and the parties to date.  The other proposed family member Deputies and the family’s accountant were deemed inappropriate for various reasons, including their inability to independently investigate their own past financial conduct. 

Senior Judge Lush felt that the choice of appointment for P in this case was between a Panel Deputy and the solicitor instructed by Z to make the initial application.  Ultimately, he concluded that a Panel Deputy should be appointed.  He felt that the wider family were more likely to cooperate with an independent party.  He accepted the ‘broad thrust’ of the argument about possible bias and reiterated previous case law that it should be “a cautionary tale for all those who put themselves forward as professional deputies when too closely associated with one party in a dispute before the Court of Protection”.  The final point made by Senior Judge Lush was that, as P’s finances were complex and involved corporate and international elements, the Panel Deputy should be a member of a firm which has “experience of investigating white collar crime and bringing proceedings for the recovery of misappropriated funds, and which has access to international and corporate expertise, if necessary”.  This is an interesting judgment and serves as a useful reminder to professionals that it is imperative to maintain an independent and unbiased approach in these sorts of applications.  Even the appearance of bias might lead to an unsuccessful appointment if doubt can be raised about impartially as opposed to approaching matters neutrally and factually. 

Specific technical expertise of the firm from which the Deputy will work seems to have been an important consideration in this case where extensive investigations are likely to have had to be undertaken into past transactions made by family members from P’s personal and business accounts.