“The provisions of s8 (sic) of the MCA 2005, means the court has the power to make interim orders or directions pending the final determination of the application if it is in P’s best interests to do so. In MMP’s case the issues remain to be determined at a final hearing, but the issue of MMP’s beneficial interests have arisen and they are in dispute and require action to protect them. There is a possibility that they could be disposed of, leaving MMP bereft of a substantial sum of money…” b. para 42: “The power to make injunctive orders derives from the provisions of s16(2) of the 2005 Act which empowers the court to make decisions on behalf of P and s16(5) which enables the court to “make such further orders or give such directions…as it thinks necessary and expedient for giving effect to, or otherwise in connection with, an order…made by it under subsection (2).” c. para 43: “By virtue of s.47(1) the Court of Protection has the same powers, rights, privileges and authority as the High Court. The High Court has the power to make interlocutory injunctions by virtue of the provisions of s.37(1) of the 1981 Act.”
“…it would therefore be surprising if the Court of Protection was powerless to protect MMP’s beneficial interest where a dispute lies about them before a final hearing, where there is a possibility that she might be deprived of them…. ” b. para 48: “My decision is that there is sufficient evidence, before a final determination, for the court to be concerned that MMP may have a beneficial interest in the proceeds of sale of [50 C Road] which requires preservation and protection. She does not have the mental capacity to instruct solicitors any longer and to take action herself to safeguard her assets. It is this court’s responsibility to preserve the status quo and to protect the vulnerable and in this case her assets, even though ultimately the issue will require determination in another court. The balance of convenience lies in favour of making an injunction. Particularly, when the applicant’s assets are tied up until October 2022 in a high interest bearing account and the 4th respondent by his counsel has stated that he has no specific call for his alleged share of the proceeds of sale.” c. para 51: “…There is a real and live dispute about the beneficial interests of MMP in the proceeds of sale [of 50 C Road]. Although this court cannot determine that dispute, it can protect any beneficial interests MMP may be able to establish so that they are not disposed of in the interim. The court did enquire of counsel for [DG] whether he had any urgent need to deal with the funds which he holds from the process of sale of [50 C Road] and the answer given at the hearing on 13th April by his counsel was no. No question arises of any detriment in [DG] not having access to those funds to date.””
“The court has in connection with its jurisdiction the same powers, rights privileges and authority as the High Court.”
“The Mental Capacity Act 2005 established a comprehensive scheme for decision-making on behalf of people who are unable to make the decision for themselves. The decision-maker - whether a carer, donee of a power of attorney, court-appointed deputy or the court - stands in the shoes of the person who is unable to make the decision - known as P - and makes the decision for him. The decision has to be that which is in the best interests of P. But it is axiomatic that the decision-maker can only make a decision which P himself could have made. The decision-maker is in no better position than P.”
“It is now widely understood that the determination of third party claims is outside the jurisdiction of the Court of Protection.”
“… suppose that the Court decided under s16(2) that a fund held by A should be transferred to be held by B for P instead. If there is no reason to suppose that A will be obstructive, it may well be enough for the Court to decide that it is in P’s best interests that the funds be transferred from A to B and make an order to that effect in the expectation that A would duly co-operate. If however there is a risk that A will seek to frustrate the order, the Court can undoubtedly add an injunction ordering A to transfer the fund. That would be an example of an ancillary order intended to make the s16(2) order effective.” b. the enforcement example (at paragraph 73): “… a useful analogy can be found in Broad Idea itself. There Lord Leggatt identified the rationale for the grant of freezing injunctions as the so-called “enforcement principle”, namely the principle that the essential purpose of a freezing order is to facilitate the enforcement of a judgment or order for the payment of a sum of money by preventing assets against which such judgment could potentially be enforced from being dealt with in such a way that insufficient assets are available to meet the judgment. Then, having identified the relevant interest as the claimant’s (usually prospective) right to enforce through the court’s process a judgment or order for the payment of a sum of money, he continued at [89]: “A freezing injunction protects this right to the extent that it is possible to do so without giving the claimant security for its claim or interfering with the respondent’s right to use its assets for ordinary business purposes. The purpose of the injunction is to prevent the right of enforcement from being rendered ineffective by the dissipation of assets against which the judgment could otherwise be enforced.”
“It is trite law that injunctions are discretionary, and the Court will take account of all the circumstances. Very frequently the Court’s decision as to whether to grant an injunction will involve balancing the rights of P against the rights of others, including Convention rights such as those under Article 8 or Article 10. This is a familiar and well understood process, and we would not want our judgment in the present case to cast any doubt on it or lead to any significant change in practice.”
“…although we accept of course that decisions made for P by the Court under s16(2)(a) are limited to the available options, we do not think this limits the power of the Court under s16(5) to grant injunctions to give effect to those decisions (something that P could of course not do for himself.)”
“The basis of the judge’s grant of the injunctions was not the protection of the employees of the trust or of the CCG from harassment in accordance with the 1997 Act. The basis of the judge’s grant of the injunctions was the protection of G’s placement. The difference was well illustrated by … the example of a hypothetical situation in which G had left the care home but a family member continued to write abusive letters to the home. In such a case an injunction could no longer be granted under s16(5) as it would do nothing to protect G or her placement, and if an injunction were sought, it would indeed have to be sought on the basis of protection from harassment in accordance with the 1997 Act, and no doubt in another court.”