Anthony Charles Fairweather v AG & Anor [2026] EWCOP 24 (T1)

IMPORTANT NOTICEThis judgment was delivered subject to a Transparency Order which forbids publication of certain material. The judge has given permission for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family and of any individual referred to in this judgment must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.[2026] EWCOP 24 (T1)Case No 11744590
COURT OF PROTECTION
Date 8 June 2026
MENTAL CAPACITY ACT 2005
IN THE MATTER OF [P]
First Avenue House
42-49 High Holborn,
London, WC1V 6NP
Before
District Judge Ellington
Between
ANTHONY CHARLES FAIRWEATHERApplicantAG (acting by her litigation friend, the Official Solicitor) (1)RespondentsGB (acting by his litigation friend, Michelmores Trust Corporation Limited) (2)Respondent
Mr John Dickinson (instructed by Clarke Wilmott LLP) for ApplicantMr Justin Holmes (instructed by the Official Solicitor) for First RespondentHearing Hearing dates: 7 May 2026
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Introduction

[1]This is the judgment in an application to dispense with service of an application for a statutory will on AG’s father, CG. Time did not allow for an oral ex tempore judgment when the application was heard on 7 May 2026.[2]AG is a young woman who is a ‘P’ as defined by the Mental Capacity Act 2005 (“the Act”). She has a comfortably sized estate following a successful claim for compensation against the NHS based on an acquired brain injury peri-natally.

(i) of the Act:

“18 Section 16 powers: property and affairs (1)The powers under section 16 as respects P's property and affairs extend in particular to— …….

(i) the execution for P of a will; ……”

[3]AG lives with her mother AB and brother GB. It is said that she has no contact with her father, CG. Under the intestacy rules, CG would be entitled to the same share of AG’s estate on AG’s death as her mother, AB. The substantive application is for authority to execute a will which passes the whole of AG’s estate to her mother, AB or, if AB is deceased, to GB.[4]The Deputy has applied for an order to dispense with service on CG under Rule 6.10 of the Court of Protection Rules 2017 (“the Rules”). That application is supported by witness statements from the Deputy of 25 March 2025 and 5 March 2026.[5]The application was decided on the basis of submissions, without oral evidence.[6]AB consented to the statutory will application and did not wish to be joined as a party. GB was excused from attendance at the application at his request. The Deputy amended his position at the start of the hearing. Previously his position had been that if the application failed, he sought to avoid sharing of some information with CG and wanted some redaction. However, at the hearing, counsel said the Deputy would not pursue the statutory will application if the application to dispense with service on CG failed. To withdraw an application would in fact require permission of the court. Legal Framework Mental Capacity Act 2005 (“the Act”)

Legal Framework

[7]As above, the court’s power to authorise the Deputy to execute a statutory will on her behalf was under Section 18 (1)(i) of the Act:
“18 Section 16 powers: property and affairs (1)The powers under section 16 as respects P's property and affairs extend in particular to— …….

(i) the execution for P of a will; ……”

European Convention on Human Rights and Human Rights Act 1998

[8]Pursuant to section 3(1) of the Human Rights Act 1998, "so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."[9]Article 6 of the Convention makes provision in respect of a right to a fair trial:
"In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
[10]Article 6 is not an absolute right. In Ashingdane v. United Kingdom (1985) 7 EHRR 528 it was held that it may be subject to limitation provided that the limitation is not of such a degree as to impair the essence of the right, is in pursuit of a legitimate aim, and is reasonably proportionate to that aim.[11]Article 8 makes provision in respect of a right to respect for private and family life:
"Everyone has the right to respect for his private and family life, his home and his correspondence."
[12]Article 8 is a qualified right:
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[13]The Official Solicitor refers to M v P [2019] EWCOP 42, in which HHJ Hilder refers to A v. Croatia, Application no. 55164/08 [2011] 1 FLR 407, in which the European Court of Human Rights considered whether Croatia's failure to protect a woman from the violence of her husband had breached her Article 8 rights: “There was said (at paragraphs 58 – 60) to be "no doubt" that "the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves….. While the essential object of Art 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective 'respect' for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves….Under Art 8 States have a duty to protect the physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence."

Court of Protection Rules 2017 (“the Rules”)

[14]Practice Direction 9E ‘Applications relating to Statutory Wills, Codicils, Settlements and Other Dealings with P’s Property’ provides at paragraph 9: “Respondents and persons who must be notified of an application 9 The applicant must name as a respondent—(a) any beneficiary under an existing will or codicil who is likely to be materially or adversely affected by the application;(b) any beneficiary under a proposed will or codicil who is likely to be materially or adversely affected by the application; and(c) any prospective beneficiary under P's intestacy where P has no existing will. (Practice direction B accompanying Part 9 sets out the procedure for notifying others of an application.)” (a) any beneficiary under an existing will or codicil who is likely to be materially or adversely affected by the application; (b) any beneficiary under a proposed will or codicil who is likely to be materially or adversely affected by the application; and (c) any prospective beneficiary under P's intestacy where P has no existing will.[15]Part 9.10 of the Rules then provides:
“9.10 — Applicant to notify other persons of an application (1) As soon as practicable and in any event within 14 days of the date on which the application form was issued, the applicant must notify the persons specified in the relevant practice direction— a) that an application has been issued; b) whether it relates to the exercise of the court’s jurisdiction in relation to P’s property and affairs, or P’s personal welfare, or to both; and c) of the order or orders sought. (2) Notification of the issue of the application form must be accompanied by a form for acknowledging notification. (3) The applicant must file a certificate of notification within 7 days beginning with the date on which notification was given.” (1) As soon as practicable and in any event within 14 days of the date on which the application form was issued, the applicant must notify the persons specified in the relevant practice direction— a) that an application has been issued; b) whether it relates to the exercise of the court’s jurisdiction in relation to P’s property and affairs, or P’s personal welfare, or to both; and c) of the order or orders sought. (2) Notification of the issue of the application form must be accompanied by a form for acknowledging notification. (3) The applicant must file a certificate of notification within 7 days beginning with the date on which notification was given.”
[16]Practice Direction 9B - Notification of Other Persons that an Application Form has been Issued’ includes at paragraphs 4 to 9: “4. The applicant must seek to identify at least three persons who are likely to have an interest in being notified that an application form has been issued. The applicant should notify them— (d) that an application form has been issued; (e) whether it relates to the exercise of the court’s jurisdiction in relation to P’s property and affairs, or P’s personal welfare, or both; and (f) of the order or orders sought. 5. Members of P’s close family are, by virtue of their relationship to P, likely to have an interest in being notified that an application has been made to the court concerning P. It should be presumed, for example that a spouse or civil partner, any other partner, parents and children are likely to have an interest in the application. 6. This presumption may be displaced where the applicant is aware of circumstances which reasonably indicate that P’s family should not be notified, but that others should be notified instead. For example, where the applicant knows that the relative in question has had little or no involvement in P’s life and has shown no inclination to do so, the applicant may reasonably conclude that that relative need not be notified. In some cases, P may be closer to persons who are not relatives and if so, it will be appropriate to notify them instead of family members. 7. The following list of people is ordered according to the presumed closeness in terms of relationship to P. They should be notified in descending order (as appropriate to P’s circumstances)—(a) spouse or civil partner;(b) person who is not a spouse or a civil partner but who has been living with P as if they were;(c) parent or guardian;(d) child;(e) brother or sister;(f) grandparent or grandchild;(g) aunt or uncle;(h) child of a person falling within sub-paragraph (e);(i) step-parent; and(j) half-brother or half-sister. (If any of the people to be notified are children or protected parties, see rule 6.4.) 8. Where the applicant decides that a person listed in one of the categories in paragraph 7 ought to be notified, and there are other persons in that category (e.g. P has four siblings), the applicant should notify all persons falling within that category unless there is a good reason not to do so. For example, it may be a good reason not to notify every person in the category if one or more of them has had little or no involvement in P’s life and has shown no inclination to do so. 9. Where the applicant chooses not to notify a person listed in paragraph 7 because the presumption has been displaced (see paragraphs 6 and 8 above) the evidence in support of the application form must also set out why that person was not notified.” (d) that an application form has been issued; (e) whether it relates to the exercise of the court’s jurisdiction in relation to P’s property and affairs, or P’s personal welfare, or both; and (f) of the order or orders sought. (a) spouse or civil partner; (b) person who is not a spouse or a civil partner but who has been living with P as if they were; (c) parent or guardian; (d) child; (e) brother or sister; (f) grandparent or grandchild; (g) aunt or uncle; (h) child of a person falling within sub-paragraph (e); (i) step-parent; and (j) half-brother or half-sister.[17]I accept the submissions of Mr Holmes for the Official Solicitor that Practice Direction 9E requires service on CG, not notification. Notification also applies, for others who may have an interest in being notified that an application form has been issued, under Practice Direction 9B and Rule 9.10.[18]Rule 6.10 enables the court to dispense with service: “6.10 Power of court to dispense with service(1) The court may dispense with any requirement to serve a document.(2) An application for an order to dispense with service may be made without notice. (1) The court may dispense with any requirement to serve a document. (2) An application for an order to dispense with service may be made without notice.[19]Rule 3.3 gives the court a general power to dispense with the requirement of any rule. “R3.3. Court’s power to dispense with a requirement of any rule In addition to its general powers and the powers listed in rule 3.1, the court may dispense with the requirements of any rule”[20]Rule 1.3 sets out the overriding objective: a. “Overriding objective 1.1.—(1) These Rules have the overriding objective of enabling the court to deal with a case justly and at proportionate cost, having regard to the principles contained in the Act. (2) The court will seek to give effect to the overriding objective when it— (a)exercises any power under the Rules; or (b)interprets any rule or practice direction. (3) Dealing with a case justly and at proportionate cost includes, so far as is practicable— (a)ensuring that it is dealt with expeditiously and fairly; (b)ensuring that P's interests and position are properly considered; ……”[21]It is clear from the Rules considered above that the starting point is that CG should be served with the statutory will application but that the court has the power to dispense with that service and that in exercising any power under the Rules, the court must ensure that P’s interests and position are properly considered. In addition, this position includes whether CG is to be named as a respondent.

Case Law

[22]Mr Holmes for the Official Solicitor and Mr Dickinson for the Applicant have filed Position Statements which they have taken me to in their submissions. I am most grateful for their assistance, particularly as the authorities referred to were made available to me and the analysis of their application to this case was extremely helpful and extensive.[23]The Applicant and the Official Solicitor agree that Re D [2016] EWCOP 35 is the leading case setting out the principles to apply when considering dispensing with service of a statutory will application. These principles were approved by Lord Justice Baker in Re P (Discharge of a party) AA and London Borough of Southwark and P (by her litigation friend, The Official Solicitor) and South London and Maudsley NHS Foundation Trust [2021] EWCA Civ 512. These were set out as follows:
“Where the court is faced with an application to dispense with service on a materially affected party the following matters should be considered by the court: (1) A decision by the court to dispense with the service of an application on a person who would otherwise be entitled to it is not “an act done, or decision made, under the Mental Capacity Act 2005 for or on behalf of P” within the meaning of section 1(5) . It is therefore not a decision which is to be determined only by reference to an assessment of P's best interests. (2) The court’s decisions on procedural matters should be considered with regard to the obligation to give effect to the overriding objective set out at rule 3 of the Court of Protection Rules 2007. This makes clear that dealing with a case justly includes: a) ensuring that it is dealt with expeditiously and fairly b) ensuring that P's interests and position are properly considered. Although P's best interest may be relevant to the court's decision to dispense with service, unlike a decision which is being taken for or on behalf of P, they are not determinative; c) dealing with the case in ways that are proportionate to the nature, importance and complexity of the issues; d) ensuring that the parties are on an equal footing; e) saving expense; and f) allotting it an appropriate share of the court's resources, while taking account of the need to allot resources to other cases. (3) The court should recognise that a decision to dispense with service on an individual otherwise entitled to it may engage that individual’s rights under the European Convention on Human Rights, especially articles 6 and 8 . In any event, P’s own Convention rights are certainly engaged. More broadly, even if Convention rights are not engaged, issues of procedural fairness arise. (4) A decision to dispense with service on an affected party will mean that the court may have to decide the substantive application without all the relevant material before it. (5) Any decision to dispense with service on an individual will be taken by the court on the basis of untested evidence. The apparent merits of the substantive application should not be used to justify dispensing with service. (6) Fears about the consequences to P or the applicant of service on the individual in question can in many ways be ameliorated by the use of the court's powers under rule 19 to redact relevant details, such as addresses. (7) The consequences of the application succeeding to the individual who is not to be served should also be considered. (8) Before a decision is taken to dispense with service because of practical difficulties, consideration should be given to the possibility of effecting service by means of an alternative route under rule 34. (9) Matters of procedural fairness should be given a high regard, and it is submitted that cases where it is appropriate to dispense with service on an individual who is directly and adversely affected by an application are likely to be exceptional. (10) Different factors may apply in cases where the application is to dispense with service on P or where there is genuine urgency and there is a need to balance the prejudice of proceeding in the absence of an affected party against the prejudice to P or another party of not proceeding at all.”
The Senior Judge then reconsidered the case in accordance with this guidance and overturned DJ Payne’s order. In particular, he criticised the District Judge’s unwillingness to incur the expense of tracing F and pointed out that applications such as this were frequently made and usually dismissed. Only an exceptional case would be likely to justify dispensing with service. (1) A decision by the court to dispense with the service of an application on a person who would otherwise be entitled to it is not “an act done, or decision made, under the Mental Capacity Act 2005 for or on behalf of P” within the meaning of section 1(5) . It is therefore not a decision which is to be determined only by reference to an assessment of P's best interests. (2) The court’s decisions on procedural matters should be considered with regard to the obligation to give effect to the overriding objective set out at rule 3 of the Court of Protection Rules 2007. This makes clear that dealing with a case justly includes: a) ensuring that it is dealt with expeditiously and fairly b) ensuring that P's interests and position are properly considered. Although P's best interest may be relevant to the court's decision to dispense with service, unlike a decision which is being taken for or on behalf of P, they are not determinative; c) dealing with the case in ways that are proportionate to the nature, importance and complexity of the issues; d) ensuring that the parties are on an equal footing; e) saving expense; and f) allotting it an appropriate share of the court's resources, while taking account of the need to allot resources to other cases. (3) The court should recognise that a decision to dispense with service on an individual otherwise entitled to it may engage that individual’s rights under the European Convention on Human Rights, especially articles 6 and 8 . In any event, P’s own Convention rights are certainly engaged. More broadly, even if Convention rights are not engaged, issues of procedural fairness arise. (4) A decision to dispense with service on an affected party will mean that the court may have to decide the substantive application without all the relevant material before it. (5) Any decision to dispense with service on an individual will be taken by the court on the basis of untested evidence. The apparent merits of the substantive application should not be used to justify dispensing with service. (6) Fears about the consequences to P or the applicant of service on the individual in question can in many ways be ameliorated by the use of the court's powers under rule 19 to redact relevant details, such as addresses. (7) The consequences of the application succeeding to the individual who is not to be served should also be considered. (8) Before a decision is taken to dispense with service because of practical difficulties, consideration should be given to the possibility of effecting service by means of an alternative route under rule 34. (9) Matters of procedural fairness should be given a high regard, and it is submitted that cases where it is appropriate to dispense with service on an individual who is directly and adversely affected by an application are likely to be exceptional. (10) Different factors may apply in cases where the application is to dispense with service on P or where there is genuine urgency and there is a need to balance the prejudice of proceeding in the absence of an affected party against the prejudice to P or another party of not proceeding at all.”[24]In Re AB [2014] COPLR 381 District Judge Batten held that, in order to exclude F from the proceedings, she would have to be able to conclude that the risk to P, and the severity of the harm which would result, were likely to be “so serious that it justifies an interference with [F]’s rights under Article 6.” She balanced the various factors against each other, and concluded that F should be notified of the proceedings, but not served as a respondent, and that if necessary any papers to be served on F should be redacted to remove information which would help F locate P. She concluded:[25]“In my judgment permission to dispense with service or notification of an application altogether should only be made in exceptional circumstances, where there are compelling reasons for doing so. Otherwise the interests of justice will not be served and the court will not be seen to be acting fairly towards all parties.”[26]The Official Solicitor refers to three further cases, LCN v KF [2019] EWCOP 1, M v P [2019] EWCOP 42 and BH v JH [2024] EWCOP 12 as examples where the obligation to serve those affected by the application can be avoided in cases of urgency or where the potential respondents will not be prejudiced by the application being made and there is some other compelling reason for not serving them. These cases do not undermine the general principle stated in Re D.[27]The Official Solicitor then seeks to draw a contrast with welfare cases, as opposed to the statutory will cases considered above. These ‘welfare cases’ include C v C [2014] EWHC 131.[28]In C v C, P had been adopted as a young child. M, P’s birth mother, applied to the Court of Protection for an order allowing her contact with P. The judgment was an appeal against restrictions on disclosure to M ordered by the first instance judge. Munby J, as he then was, held (at para. 20) that the same rules as to disclosure of evidence to parties in family proceedings should apply to proceedings in the Court of Protection. Under those rules, so long as the right to a fair trial was satisfied, disclosure to parties could be restricted, and such restrictions would not be a breach of the European Convention on Human Rights, although any such restrictions would have to be compellingly justified and limited to only those which were strictly necessary (paras. 7-19).[29]In KK v Leeds City Council [2020] EWCOP 64, KK appealed against a decision to refuse her joinder after considering material which neither she nor her lawyers had seen. Mr Justice Cobb, as he then was, found, in dismissing the appeal: 41 Reflecting on these arguments, it seems to me that a judge faced with the situation faced by HHJ Hayes QC at the hearing of the application for party status should consider the following points: i. The general obligation of open justice applies in the Court of Protection as in other jurisdictions (see [32] above); ii. A judge faced with a request to withhold relevant but sensitive information/evidence from an aspirant for party status, must satisfy him/herself that the request is validly made (see [35] above); iii. The best interests of P, alternatively the "interests and position" of P, should occupy a central place in any decision to provide or withhold sensitive information/evidence to an applicant (section 4 MCA 2005 when read with rule 1.1(3)(b) COPR 2017); the greater the risk of harm or adverse consequences to P (and/or the legal process, and specifically P's participation in that process) by disclosure of the sensitive information, the stronger the imperative for withholding the same (see [39] / [40] above); iv. The expectation of an "equal footing" (rule 1.1(3)(d) COPR 2017) for the parties should be considered as one of the factors (see [11] above); v. While the principles of natural justice are always engaged, the obligation to give full disclosure of all information (including sensitive information) to someone who is not a party is unlikely to be as great as it would be to an existing party (see [28(iv) and [37] above); vi. Any decision to withhold information from an aspirant for party status can only be justified on the grounds of necessity (see [36] and [37] above); vii. In such a situation the Article 6 and Article 8 rights of P and the aspirant for party status are engaged; where they conflict, the rights of P must prevail (see [37] above); viii. The judge should always consider whether a step can be taken (one of the 'procedural mitigations' referred to at [26] above) to acquaint the aspirant with the essence of sensitive/withheld material; by providing a 'gist' of the material, or disclosing it to the applicant's lawyers; I suggest that a closed material hearing would rarely be appropriate in these circumstances.[30]In Southwark LBC v P and AA [2021] EWCA Civ 512 and [2021] EWCOP 46, the local authority, NHS Trust and the Official Solicitor then asked Hayden J (without notice to M or to her solicitors) to exclude M and her solicitors from part of a hearing and to prohibit all further contact between P and M. The judge, after a private hearing from which M and her lawyers were excluded, went further; he ordered of his own motion that M be discharged as a party to the proceedings.[31]On appeal, Baker LJ specifically endorsed the view of Senior Judge Lush in Re D that a decision by the court to dispense with the service of an application on a party is not one made for or on behalf of P and therefore is not one which is required to be made solely in P’s best interests. He nevertheless agreed with Cobb J’s observation in KK v Leeds City Council that “the best interests of P… should occupy a central place in any decision to provide or withhold sensitive information or evidence to an applicant”. He found that M’s Article 6 rights were engaged, but that “insofar as her rights conflicted with P’s, the law required the conflict to be resolved by reference to P’s best interests” (para. 53).[32]The matter was then re-heard before Lieven J, by which time the position had changed. P had been living away from home and from her mother for two years and had clearly expressed that she wanted no contact or ongoing relationship with her. Mrs Justice Lieven found this would “cap” the mother’s Article 8 rights. Moreover, there was no necessity for M to be a party to the Court of Protection proceedings simply to deny allegations made by P.[33]Mr Holmes also refers to Re A (Covert medication; closed proceedings) [2022] EWCOP 44 in which Poole J quoted the principles set out by Cobb J in KK v Leeds City Council . Re A does not take me further.

Factual Background

[34]The Applicant has prepared a chronology and has exhibited a document produced by AB, although it does not contain a statement of truth and the hearing proceeded on submissions only. It would have been better to have had a witness statement from AB, to give her account more weight.[35]The chronology and the documents from AB set out how AB says that she and CG met in 2001. CG was visiting the UK from the United States of America. AB describes visits to the USA and concerns about CG, including that he was married, used cocaine, was volatile and had non-consensual sex with her. Daily contact turned into weekly contact. AB says CG visited her, including for AG’s first birthday and in 2006 AB says CG threatened to remove AG and to sue for half any compensation award.[36]Mr Fairweather exhibits at AC 12 disclosure from Devon and Cornwall Police. This includes an entry in the log at 17.07 on 31 March 2006 that AB was informed [redacted] has received a caution and will be released shortly. AB obtained those records by e mail on 20 May 2024 from a freedom of information request. I accept on the balance of probabilities that they relate to CG because the records refer to the offender as an ex partner, they record Yes to whether there is child conflict, they refer to AB’s worry that CG may snatch the child and they record that CG lives in the USA. What is not clear is what alleged offence CG accepted a caution for. There is a record of alleged strangulation, other violence, property damage and theft.[37]The Official Solicitor refers to a research paper published by the Government on 20 February 2014 in connection with what was then the Criminal Justice and Courts Bill 2014 (https://researchbriefings.files.parliament.uk/documents/RP14-8/RP14-8.pdf), saying that at that stage, cautions could be administered only in the following circumstances:[38]“The offender must admit guilt, and agree to the caution being administered; there must be sufficient evidence to provide a realistic prospect of prosecution; and it must be in the public interest to dispose of the offence by way of caution rather than prosecute.” (para 7.1).[39]On the balance of probabilities, the contemporaneous nature of the report to the police, the police arrest and acceptance of a caution all lead me to find that CG was guilty of a violent assault on AB on 28 March 2006.[40]I include this finding in my consideration of the application. I cannot make a finding on AB’s fears that CG might have abducted AG. He did not. The fact that CG might have considered suing AB for half of any compensation awarded to AG is not relevant to this application. I acknowledge AB’s account that CG has not supported AG and has not seen AB since 2006. AB says she was in e mail contact with CG to allow him to see AG in 2011 when AG was in the USA, but that never happened.[41]Mr Fairweather supports the application to dispense with service at paragraphs 22 and continuing of his witness statement. He says that AB has expressed genuine concern that if CG is located and served, he will seek to become involved in AG’s life and will replicate his abusive and violent behaviour to AB, or AB, AG and GB [Paragraph 26].

Decision

[42]I apply the guidance from Re D as approved by Baker LJ in Southwark LBC v P & AA EWCA Civ 512 as set out at paragraph 23.[43]Under (1) and (2), I accept that the decision of whether to dispense with naming CG as Respondent and whether to dispense with service on him is primarily a procedural decision and not a best interest decision. This is in the context that when the court exercises any power under the Rules or interprets any rule or practice direction, it must further the overriding objective and must ensure that P's interests and position are properly considered. The Official Solicitor’s analysis on the difference between the welfare line of authorities and the statutory will line of authorities is accepted. There is a difference between including persons in each because the specific Practice Direction which applies for statutory wills – 9E – identifies those persons with a proprietary interest which would be affected by the outcome of the application as persons to be served.[44]Under (3), this application concerns CG’s article 6 rights and AG’s article 8 rights. The Official Solicitor submits that:
“The court should be cautious about preferring AG’s Article 8 right over CG’s Article 6 right, and should only do so if satisfied that the harm or potential harm to AG justifies the denial to CG of his rights under Article 6.”
I accept that is the proper approach and does not depart form the Re D principles.[45]Taking (4) and (5) together, it is important to not conflate the merits of the statutory will application with the application to dispense with service. If the court orders to dispense with service on CG, it does not have his evidence available and the evidence of the Applicant is untested. These are important factors, to which I give considerable weight.[46]I consider (6) and (8) closely linked. In this case the Applicant had made an alternative case for redaction of material if service was required. That was abandoned at the start of the hearing. I asked Mr Holmes for the Official Solicitor whether there was any substantive difference between service and notification and whether notification would meet any concerns. I accept Mr Holmes’ submissions that the Practice Direction requires service on those who fall within the categories set out in paragraph 9 of the Practice Direction, not notification. It was submitted for AG that notification had no benefit compared to service; CG would be able to find where she lived easily. If that is the case, CG could have looked her up already. Twenty years have passed since his caution in 2006 and despite AB saying she was making arrangements for a meeting in 2011, I am not told of any contact from CG. This is despite CG knowing about AG’s claim for compensation in 2006, on AB’s account. There are two addresses linked to CG in the USA which an enquiry agent has found. It is not clear that service by an alternative route would be needed under (8).[47]On (7), if the court orders dispensation with service on CG, he may lose his inheritance under the intestacy rules. If he came to hear of any order for a statutory will or the existence of proceedings, he could be put to the expense of an application. His rights under Article 6 would not have been recognised. He would not have been given the opportunity to participate in a decision as to whether he should be disinherited from AG’s estate. This is a weighty consideration.[48]Under (9), matters of procedural fairness should be given a high regard. The test of exceptionality is accepted but is not definitive in deciding that CG should be served/notified.[49]I recognise the applicant’s case now is that he will not proceed with the application if there is not an order to dispense with service. This is important under (10) and I take full consideration of that position.[50]In the consideration of these principles as set out in Re D, I have to consider the clash of CG’s Article 6 rights against AG’s Article 8 rights. It is not clear how CG would react if informed of the application for a statutory will. I have considered carefully the submissions of the parties, but he has known about AG’s claim or potential claim for compensation for decades. I am not told he has made any enquiry about the outcome of the claim since 2006, although he must have expected it to have concluded by now. There is no evidence of recent violent or criminal behaviour by CG. As above, I accept the Official Solicitor’s submission that the court should only prefer AG’s Article 8 rights over CG’s article 6 rights if satisfied that the harm or potential harm to AG justifies this. I have not been satisfied of this.[51]If I do not dispense with service on CG and no application for a statutory will is made by the applicant, are AG’s article 8 rights completely undermined? It is not clear to me how they are and as above, I find CG’s article 6 rights prevail.[52]In my decision, I have to ensure that AG’s interests and position are properly considered under the Overriding Objective. I have not been satisfied of the risk of harm to AB or to AB/AG/GB on the evidence before me. It is important for AG that there is certainty in the outcome of the application. Making an order on the basis of excluding a potentially interested party and not giving them the opportunity to participate in the proceedings is an important failure and one which could lead to challenge if CG becomes aware of the order. The Official Solicitor submits for AG that this is a difficult case which sits on the borderline, such that either an order dispensing with service or an order dismissing the application could be justified. For the reasons I have given, I dismiss the application. Service is not needed, notification will suffice in principle.