MENTAL CAPACITY ACT 2005
Rolls Building
Fetter Lane
London, EC4A 1NL
Before :
MRS JUSTICE BACON
SITTING AS A (NOMINATED) JUDGE OF THE COURT OF PROTECTION
Between :
GOPICHAND PARMANAND HINDUJA
(Deceased)
Applicant
- and -
(1) VINOO SRICHAND HINDUJA
(2) SHANU SRICHAND HINDUJA
Respondents
Mark Baxter and Sam Chandler (instructed by Withers LLP) for the Applicant
Sarah Haren KC and Georgia Bedworth (instructed by Harbottle & Lewis LLP) for the Respondents
Hearing date: 17 July 2026
APPROVED JUDGMENT
This judgment was handed down remotely at 10:30 on 4 August 2026 by circulation to the parties or their representatives by email and by release to the National Archives.
MRS JUSTICE BACON:
Introduction
This hearing concerns the latest development in a long-running family feud between members of the Hinduja family. The issue before the court is whether documents disclosed into the Court of Protection proceedings concerning the late Srichand Parmanand Hinduja (SP) should now be permitted to be used in other actual or contemplated proceedings, and if so on what terms. The application is brought by Sanjay Hinduja (Sanjay), SP’s nephew. The respondents are SP’s two daughters, Vinoo Hinduja (Vinoo) and Shanu Hinduja (Shanu). I will refer to Vinoo and Shanu in this judgment, together, as V&S.
The application concerns documents that Sanjay or his solicitors have received for the purposes of the Court of Protection proceedings, which they would now like to deploy in proceedings underway in Jersey, and contemplated probate proceedings. V&S do not dispute the relevance of at least some of the documents to the Jersey proceedings, and potentially any probate proceedings that might be commenced in due course, but dispute the procedural route by which the documents should be disclosed into those proceedings.
The ostensible simplicity of the question of whether documents disclosed into one set of proceedings can be used in other proceedings is belied in this case by three complicating features: first, the documents in issue are covered by an intricate set of restrictions and protections arising under various different orders and procedural rules; secondly, the documents are sought to be used in two different sets of actual or contemplated proceedings in different jurisdictions; and thirdly, the terms of Sanjay’s application have materially changed since it was first made.
By the time of the hearing, it remained unclear what, precisely, was being said by the parties about the restrictions currently applicable to the different categories of documents in issue, and how each side suggested that those restrictions should be addressed by the court. Two further documents were therefore produced after the hearing, to assist in understanding the parties’ positions.
First, counsel for V&S provided a further short note on their position in relation to the use of the various documents for the contemplated probate proceedings. Secondly, the parties were asked to provide a document setting out, for each category of documents in issue, (i) the current restrictions on the use of the documents in other proceedings; (ii) the steps required to permit such use; and (iii) each party’s position as to the steps which can and should be taken now. That exercise produced a four-page A3 table (the post-hearing table), in relation to which each side provided some short further submissions. That table is a very useful document, and I have used that as the starting point in identifying the opposing submissions of the parties in relation to the relevant documents.
Procedural background
The following is a very brief summary of these proceedings, so far as relevant for the purposes of this application.
The Hinduja family
SP Hinduja was the oldest of the four Hinduja brothers, who together led the Hinduja Group, a very large multinational business which led the brothers to become among the wealthiest families in the UK. SP was the chairman of the group. He became unwell in his later years, and sadly died on 17 May 2023. He was survived by his daughters V&S. His wife Madhu had died several months earlier.
The second brother was Gopichand Hinduja (GP). He died on 4 November 2025, and is survived by his sons Sanjay and Dheeraj. Sanjay is the applicant in this case. The third and fourth brothers are Prakash Hinduja (PP) and Ashok Hinduja (AP), both of whom are still alive.
The Chancery and Court of Protection proceedings
During the 2010s SP’s health started to deteriorate, and in June 2015 SP signed a lasting power of attorney for property and financial affairs (the LPA-PFA), nominating his wife Madhu as his attorney and V&S as replacement attorneys. At or around the same time he also signed an LPA for health and welfare. The LPAs were registered by the Office of the Public Guardian later that year.
A year earlier, in July 2014, SP and his brothers had signed a document which became known as J14, which concerned the control of the Hinduja assets. J14 led to proceedings in the Chancery Division, brought in November 2019 by SP acting by Vinoo as his litigation friend, seeking declarations that the agreement was of no legal effect. The respondents were SP’s three brothers.
In turn, in June 2020 GP commenced Court of Protection proceedings raising the question of whether SP had capacity to make the LPA-PFA, as well as concerns in relation to the management of SP’s affairs (going on also to raise concerns in relation to his care). Sanjay assisted his father with those proceedings. Madhu had already disclaimed her authority under the LPA in March 2019, leaving V&S as the remaining attorneys under the LPA.
In July 2020 the Court of Protection made a standard transparency order, which anonymised the parties to the proceedings and imposed various reporting restrictions. That order was referred to by the parties as the reporting restrictions order, or RRO, and I will use the same terminology in this judgment. The documents disclosed into the Court of Protection were in addition subject to the provisions of r. 5.10 of the Court of Protection Rules 2017 (COPR), prohibiting the documents from being used other than for the purpose of the proceedings in which they were filed, except where the documents had been read to or by the court or referred to at a public hearing, or the court otherwise permitted. (I will return to this rule in more detail further below.)
Variations to the RRO were made at various times, including on 21 September 2020 by an order of Hayden J which permitted the parties and their legal representatives to communicate information or material relating to the Court of Protection proceedings to amongst others SP’s brothers and their children (which therefore included Sanjay), as well as to SP and GP’s legal representatives in the Chancery proceedings. That order also provided for the parties to instruct a joint expert, Dr Jefferys, to prepare an initial report addressing SP’s best interests in relation to contact with his siblings and wider family, and how that should best be managed; and thereafter to report on (among other things) SP’s vulnerability to undue pressure and influence in respect of the making of the LPA-PFA.
At a hearing on 14 December 2020 a question arose as to how V&S were funding the Court of Protection proceedings. Their counsel informed the court that they were meeting the costs of the proceedings from their own resources. In February 2021, however, V&S informed the court and the other parties to the proceedings that they may in fact have received some of SP’s funds to pay the costs of the proceedings. In consequence, they stood down as attorneys with immediate effect and disclaimed the LPA-PFA. GP then sought the appointment of a deputy to manage SP’s affairs, and in March 2021 the court appointed Andrew Hine of Taylor Wessing. As a result of those events, there was no determination of the issues relating to the validity of the LPA-PFA.
Meanwhile on 9 February 2021 there was a hearing to consider whether the Court of Protection should, on behalf of SP, waive legal professional privilege in various documents and order that they be disclosed into the Court of Protection proceedings. That resulted in an order of Cohen J (the Cohen Order)ordering the limited waiver of privilege in relation to, and subsequent disclosure into the proceedings of, two categories of privileged documents, referred to as the Scheduled Main Documents, identified in the Second Schedule to the Cohen Order, and the Scheduled LPA Documents, identified in the Third Schedule to the Cohen Order. Privilege was waived in both categories of documents “only for the limited purpose of the use by all parties in these proceedings in the Court of Protection”.
In respect of the Scheduled Main Documents, but not the Scheduled LPA Documents, the limited waiver of privilege was also conditional on a set of very strict undertakings being provided by the Authorised Persons in the terms set out in the First Schedule to the order. The Authorised Persons included GP, Sanjay, and their solicitors Withers LLP. Those undertakings, among other things, restricted the use of the documents to the conduct of the proceedings on behalf of GP, and provided that GP and Sanjay could only inspect copies in person under the supervision of their solicitors, and could not make any copies of those documents. Those undertakings have been referred to in this hearing as the Express Undertakings. Alongside the Express Undertakings given by the Authorised Persons, V&S provided an undertaking to the court, recorded in the recitals and §17 of the First Schedule to the Cohen Order, that they would not make use of the Scheduled Main Documents in their personal capacities other than for the purpose of the Court of Protection proceedings.
Mr Baxter said that the reason for requiring specific further undertakings for the Scheduled Main Documents but not the Scheduled LPA Documents was the concern that the Scheduled Main Documents might otherwise be used in the Chancery proceedings that were ongoing at the time, concerning the validity of the J14 document. The Scheduled LPA Documents did not, however, give rise to the same issue, because those documents were confined to materials relating to SP’s LPAs, which had been signed around a year after J14 was executed.
The effect of the limited waiver of privilege, the Express Undertakings, and the undertakings given by V&S was to provide additional layers of protection for the privileged documents, going beyond the protection already provided by the reporting restrictions and the standard provisions of COPR r. 5.10. The Cohen Order nevertheless provided in §17 that the Authorised Persons and V&S had liberty to apply for the release or variation of the undertakings given under the order.
The Cohen Order also provided for the Scheduled Main Documents and the Scheduled LPA Documents to be provided to Dr Jefferys for the sole purpose of his reports in the proceedings. The corollary was that any reference to the Scheduled Main Documents in Dr Jefferys’ reports would be confidential and not available from the court file without an order of the court.
In May 2022 GP applied for the relaxation of the RRO so that certain documents disclosed in the Court of Protection proceedings could be used in the Chancery proceedings. In the event, however, agreement was reached in relation to the Chancery proceedings, such that those proceedings were stayed by consent, and GP’s application to use the documents in the Chancery proceedings was therefore not pursued. The Official Solicitor did, however, pursue a lifting of the RRO in the Court of Protection. That resulted in an order of Hayden J in August 2022 lifting the reporting restrictions.
Following an appeal by GP, the RRO was replaced with a new RRO imposed by order of the Court of Appeal in November 2022 (the CA Order). The new RRO lifted the reporting restrictions but (at §§9–13) placed restrictions on the publication of the “information” covered by the order, defined in §10 as being information about (among other things) SP’s clinical diagnosis, healthcare or daily care, unless contained in a published judgment of an English court. §13.6 of the CA Order provided, however, that the order did not prevent those covered by it from publishing the “information” in so far as knowledge of the information was acquired otherwise than in the course of the proceedings.
The CA Order also provided (at §§19–21) for specific restrictions on two categories of documents disclosed in the Court of Protection proceedings, referred to as Category A and Category B Documents, as follows:
“19. Pending further order of the Court of Protection no person may make any use of any Category A or Category B Documents (defined below) where such use of the documents would have been in breach of the transparency and reporting restrictions orders in force immediately before the coming into effect of this order and for these purposes pursuant to the orders dated 21 July 2020, 21 December 2020 and 5 September 2022:
19.1. Category A Documents in relation to each party are any documents to which COPR 2017 rule 5.10 applies; and
19.2. Category B Documents are other documents that contain information of which a party is aware because the information is contained within a Category A Document, regardless of whether such Category A Document has been referred to at a hearing in public.
20. Nothing in paragraph 19 above shall prevent any person from discussing or referring to any matter raised at a public hearing or which is in the public domain by reason of having been contained in a document that has been provided to a member of the public at any public hearing (not including any document which is simply contained in the hearing bundles).
21. For the avoidance of doubt, nothing in paragraphs 19 and 20 above shall permit any party from using the documents (Category A or Category B Documents) referred to and/or provided to any person at a public hearing for the purposes of other proceedings.”
While the language of §21 of the CA Order is somewhat unclear (“nothing … shall permit any party from using the documents … for the purposes of other proceedings”), it was common ground before me that the effect of §§19–21 is to prohibit the parties from using any documents covered by those provisions in other proceedings, even if they have been read or referred to at a public hearing. In other words, even if COPR r. 5.10 no longer protects a document from use in other proceedings, because it has been read or referred to at a public hearing, collateral use remains prohibited under the CA Order.
SP then passed away in May 2023. In 2025 GP himself became unwell. Any residual matters relating to the Court of Protection proceedings were therefore conducted by Sanjay acting on GP’s behalf as his litigation friend.
The Jersey proceedings
In 2016, proceedings began in the Royal Court in Jersey concerning a Jersey law discretionary trust known as the Acorn Trust. The beneficiaries include Vinoo, Shanu, Sanjay, Dheeraj and certain other members of the Hinduja family, but not any of the four Hinduja brothers themselves. A key issue in those proceedings is whether the trustee of the Acorn Trust (a professional trustee company registered in the Isle of Man) and/or the Protector of the Acorn Trust (a Liechtenstein Anstalt) should take the J14 document into account when exercising its discretion under the trust.
In relation to that issue, V&S allege that SP was tricked into signing J14 and/or was not aware of its contents when it was signed, and that SP had disavowed J14 on numerous occasions between 2014 and 2016. Sanjay’s position is that SP’s mental capacity in the period 2014 to 2016 is highly relevant to the question of whether SP’s conduct amounted to a disavowal of J14 during that period, and says that there is material in the Court of Protection proceedings which suggests that SP lost capacity at some point towards the latter part of 2014.
There was a hearing on 12 December 2025 in the Jersey proceedings before Commissioner Bailhache of the Royal Court of Jersey, on an application for directions, which included the formulation of a preliminary issue for trial, as well as whether the Royal Court should seek to obtain documents from the Court of Protection for use in the Jersey proceedings.
The judgment of Commissioner Bailhache was handed down on 13 January 2026. He directed that there would be a trial of preliminary issues in the Jersey proceedings, to address the question of whether the trustee and/or the Protector of the Acorn Trust is required or permitted to take the J14 document into account, in the exercise of their discretionary powers under the trust; and if so what principles should be derived from that document.
In relation to the Court of Protection documents, Commissioner Bailhache said in his judgment that he was willing to support an application by V&S and/or Sanjay for the release of documents held in the Court of Protection proceedings, since:
“23. SP’s capacity at the relevant time does arise on the current pleadings in Jersey in relation to whether any disavowal of J14 which he might have made can be regarded as genuine. For that reason, in my judgment, justice would be done in the proceedings in Jersey if all relevant documents, other than those covered by legal professional or litigation privilege, disclosed in the Court of Protection proceedings were available to the parties in the open proceedings before the Royal Court. I make that comment recognising that different considerations may arise in the Court of Protection and that it is entirely a matter for that Court to decide whether and if so to what extent, documents should be released from the restrictions applicable to its proceedings.
24. I note that the parties to the Jersey proceedings have the documents anyway. The issue is whether they can use them. If the Court of Protection is minded so to do, I would certainly encourage the limited lifting of restrictions to enable the use of those documents in the Jersey proceedings, subject of course to any claims of privilege: and in that context, I make no decision, because I have heard no argument, as to whether the privilege which SP or GP could have asserted, had they lived, can be claimed by their descendants in the Jersey proceedings.”
25. It may be that, having regard to these comments, no letter from the Royal Court to the Court of Protection is necessary. This part of the judgment is delivered in public and the parties can rely on it to the extent that they wish to do so in any application they make elsewhere.”
As discussed further below, Sanjay relies on that judgment for the purposes of this application.
The prospective probate proceedings
In addition to the Jersey proceedings, a dispute has arisen in this jurisdiction as to which (if any) will made by SP stands as his last valid will. Vinoo’s solicitors say that SP made a will in 2016, appointing Vinoo as executor. As with the Jersey proceedings, Sanjay contends that there is material in the Court of Protection proceedings that casts doubt on whether SP had capacity by 2016.
If that will was not validly made, Sanjay’s position is that probate should be obtained on the basis of an earlier will dating from 1992, for which the executor was SP’s youngest brother AP, and under which GP was a beneficiary (such that his interest would now pass to his estate, for which Sanjay and Dheeraj are the personal representatives). It is not suggested by the parties that there are any other wills in contention, other than the 1992 and 2016 wills.
No application for probate has yet been made (whether by Sanjay, V&S or otherwise), but none of the parties dispute that probate will inevitably need to be obtained. At that stage the court will need to determine the disputed question of the validity of the 2016 will, which is likely to involve consideration of SP’s capacity at that time.
Sanjay’s application and the initial hearing before Hayden J
Sanjay’s application was originally filed in these proceedings on 10 October 2025 in his capacity as the litigation friend of GP, who at that time was still alive. GP then died a month later, and on 26 January 2026 Sanjay filed a further application in his personal capacity.
The application was first addressed at a hearing before Hayden J on 27 April 2026, which went part-heard. The date of 1 July 2026 was set down for the resumption of the hearing. In the event, however, the application was unable to proceed on that date, and by order of Hayden J dated 14 July 2026 the case was transferred to be heard in the Business and Property Courts.
The issues
The scope of Sanjay’s application and the precise areas of dispute between the parties were, as explained above, not entirely clear at the hearing but have now been set out in the post-hearing table. That table not only clarifies the parties’ positions on the categories of documents that were discussed at the hearing, but also identifies further categories of documents that were not addressed at the hearing, and/or were not dealt with in the rival draft orders produced for the hearing.
I consider that the disputed points now articulated in the table can and should be determined on the material available to me. That table now indicates the position of each side on the different categories of documents in the table, and the relevant legal principles underpinning those positions have been ventilated in writing and orally at the hearing. It is in the interests of all parties, and furthers the overriding objective in COPR r. 1.1, for this decision to deal as comprehensively as possible with all the categories of documents that have now been put in issue.
As to the substance of the application, it is not disputed that at least some of the documents at issue in this application will be relevant to the Jersey proceedings, and might be relevant to the probate proceedings if and when those proceedings are brought. The issue is the mechanics by which those documents might be considered and deployed, where relevant. On that question the parties’ submissions are different for the non-privileged and the privileged documents.
There are potentially two categories of non-privileged documents and four categories of privileged documents, as follows:
non-privileged:the Category A and B Documents that are the subject of the CA Order;
non-privileged: other non-privileged documents that have not been filed in the Court of Protection proceedings;
privileged:the Scheduled Main Documents;
privileged:documents that refer to the Scheduled Main Documents;
privileged:the Scheduled LPA Documents; and
privileged:potentially, other privileged documents that have been disclosed in the Court of Protection proceedings, but which are not in any of the categories above.
The question in relation to the non-privileged documents is whether the court should make an order releasing or varying the restrictions on their use so as to permit them to be disclosed in the Jersey proceedings and/or the contemplated probate proceedings.
In relation to the privileged documents, the first question is how to deal with the fact that they are privileged. The next question is whether the court can and should make any further orders at this stage relating to the use of those documents in the Jersey and/or probate proceedings.
I will address each of the six categories in turn, after first considering the relevant legal principles.
Relevant legal principles
Court of Protection anonymity and confidentiality restrictions
COPR r. 4.3 provides:
“Court’s power to order that a hearing be held in public
(1) The court may make an order—
(a) for a hearing to be held in public;
(b) for a part of a hearing to be held in public; or
(c) excluding any person, or class of persons, from attending a public hearing or part of it.
(2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order—
(a) impose restrictions on the publication of the identity of—
(i) any party;
(ii) P (whether or not a party);
(iii) any witness; or
(iv) any other person;
(b) prohibit the publication of any information that may lead to any such person being identified;
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or
(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.
(3) A practice direction may provide for circumstances in which the court will ordinarily make an order under paragraph (1), and for the terms of the order under paragraph (2) which the court will ordinarily make in such circumstances.”
Practice Direction 4C: Transparency was made pursuant to COPR r. 4.3. It provides at §2.1 that the court will ordinarily make an order under COPR r. 4.3(1)(a) that any attended hearing shall be in public, and in the same order impose restrictions under COPR r. 4.3(2) in relation to the publication of information about the proceedings. §2.3 of the Practice Direction notes that the order will ordinarily be in terms of the standard order approved by the President of the Court of Protection and published on the Court of Protection website.
That standard order anonymises the protected party and prohibits the communication of any information that is likely to identify the protected party, or where they live or are being cared for. The established position in the Court of Protection is that it would be contrary to the administration of justice, the purpose of the proceedings and the protected party’s interests to allow that person to be identified in public, while the proceedings are continuing: NHS Staffordshire & Stoke on Trent Integrated Care Board v Gardner [2025] EWCOP 34, §19.
What about the position once the protected party has died? In NHS Staffordshire v Gardner, at §§34–43, Poole J took the view that the purpose of the standard transparency order is to protect the interests of the protected party, and that any protection of the privacy of family members is incidental. Once Mr Gardner had died, therefore, there was no need to protect his Article 8 ECHR rights with continued anonymity restrictions. Mr Baxter’s submission in this case was that the reasoning in NHS Staffordshire v Gardner applies equally to documents disclosed in the Court of Protection proceedings that are protected by confidentiality restrictions such as those contained in the CA Order in the present case.
There is, however, an important distinction between releasing information that identifies a protected person after their death, and disclosing confidential documents that have been provided in the course of the proceedings. Such documents will typically contain intensely personal information about the protected person’s private and family life, including medical details, care arrangements and financial affairs. Those matters would not have come into the public domain but for the existence of the Court of Protection proceedings, and their confidentiality is therefore paramount. Rajah J thus observed in W v P [2025] EWCOP 11, §9, that:
“Those who have mental capacity can deal with their private affairs confidentially and in private. The general rule in COPR 4.1 recognises that a person who lacks mental capacity to deal with their private affairs should similarly be entitled to the same privacy. The Court of Protection is only involved because the person’s reduced capacity requires interference in their personal autonomy.”
It is vital that those who are the subject of proceedings in the Court of Protection have confidence in the confidentiality of the proceedings, and in particular the confidentiality of assessments undertaken for the purposes of determining whether or not they have capacity. It is likewise important that they feel able to be as frank as they can with those who are assessing them: see the comments in Re AB [2019] EWCOP 66, §§11–12. The expectation of confidence extends, for the same reasons, beyond the protected party to their family, caregivers and medical staff involved in their treatment, among others. Any disclosure of those documents after the death of the protected person must therefore be considered in light of the broader interests of confidentiality that may continue to subsist in the relevant documents.
In Re AB the court refused the application for the disclosure of expert reports provided for the purposes of the proceedings to police investigating offences said to have been committed by the protected person. While the court recognised that barriers between one branch of the judicature and another might be inimical to the overall interests of justice (§7), it concluded that the expert’s reports were not relevant to the issue that the police had to determine for the purposes of their prosecution of AB (§§9–12).
In Re AB the court’s decision was taken while AB was still alive. By contrast in Re: Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2026] EWCA Civ 640, while the disclosure decision at first instance had been made while Mr Gardner was alive, by the time the matter reached the Court of Appeal Mr Gardner had died. The issue in the appeal was whether position statements drafted for the purpose of the proceedings while Mr Gardner was still alive could be disclosed to a non-party observer, in that case the founder and co-director of the Open Justice Court of Protection Project. The judge had granted the application for disclosure, but that order was then appealed by Mr Gardner’s mother.
The Court of Appeal allowed the appeal, noting the comments of Rajah J in W v P referred to above, and commenting that justice would not be done if a witness refuses to provide material evidence knowing that it may be reproduced word for word in a position statement that was readily accessible to non-parties (§64(i)). As to the way in which any decision as to disclosure should be made, the court said at §63 that:
“It is for the person seeking access to documents to explain why they seek them and how granting them access will advance the open justice principle … If there is no good reason for granting disclosure, that will be the end of the matter. Moreover, disclosure of court documents in the fulfilment of the transparency objectives … should be limited, in my judgment, to the extent essential to achieve those objectives and no further. Indeed, there are many legitimate reasons why extensive disclosure of court documents should not be ordered in cases involving such intensely personal matters arising in the Court of Protection.”
It was notable that the judgment did not suggest that the force of these comments was in any way diminished by the fact that, by the time of the hearing, Mr Gardner had died. On the contrary, the court’s conclusion at §76 recognised that the rights that required protection included the rights of the appellant (Mr Gardner’s mother) and the family, and noted that the disclosure of the statements in issue, containing large amounts of highly personal and sensitive source evidence, would represent a significant intrusion on the Article 8 ECHR rights of the appellant and the family. The court also drew a distinction with the protection of Mr Gardner’s personal information contained in the position statements and the scope of the transparency order made in the proceedings, noting that the transparency order protected only limited information about Mr Gardner, by protecting his anonymity and that of his family, and did not extend to protecting “the wider extent of intensely personal and sensitive information contained in Mr Gardner’s Living Will and associated documents”.
These decisions indicate that where one or other party to proceedings in the Court of Protection seeks to release or vary the confidentiality restrictions imposed in those proceedings, including after the death of the person the subject of the proceedings, the following general principles will apply:
The court will need to consider on a case-by-case basis the justification for disclosure of the relevant documents, and it will be for the person seeking disclosure to justify their request.
The question to be asked is whether the specific interest in disclosure outweighs the ongoing interest in the protection of the confidentiality of personal and sensitive information contained within documents filed or disclosed in the Court of Protection proceedings, given the sensitive context in which those documents were provided, and the legitimate expectations of confidentiality on the part of all those involved in the proceedings.
If disclosure is granted, it should be limited to what is essential to achieve the particular objectives justifying disclosure.
Collateral use of documents
COPR r. 5.10 provides as follows:
“Subsequent use of court documents
(1) Where a document has been filed or disclosed, a party to whom it was provided may use the document only for the purpose of the proceedings in which it was filed or disclosed, except where—
(a) the document has been read to or by the court or referred to at a public hearing; or
(b) the court otherwise permits.
(2) Paragraph (1)(a) is subject to any order of the court made under rule 4.3(2).”
The rule bears obvious similarity to CPR r. 31.22, save that CPR r. 31.22(1)(c) additionally permits the use of the document where the party who disclosed the document and the person to whom the document belongs both agree. That additional provision is (unsurprisingly) absent from COPR r. 5.10.
CPR r. 31.22 codifies the established rule that documents disclosed into one set of proceedings cannot be used for any collateral purpose without either the consent of the disclosing party or the leave of the court. The rationale of that rule was explained by the Court of Appeal in Tchenguiz v SFO [2014] EWCA Civ 1409, §56, and by Cockerill J in Lakatamia v Su [2020] EWHC 3201 (Comm), [2021] 1 WLR 1097, §47. That rationale is essentially twofold. First, compulsory disclosure represents an intrusion into a party’s otherwise private and confidential documents, justified only by the need to secure the fair determination of the proceedings in which disclosure is ordered. Secondly, the protection against collateral use encourages parties to comply fully and frankly with their disclosure obligations, in the knowledge that documents produced for one set of proceedings will not, save in defined circumstances or with the permission of the court, be used for some other purpose.
In consequence, there are well-established principles governing the circumstances in which permission will be given by the court under CPR r. 31.22(1)(b) for collateral use, such as use in other proceedings. In particular:
The court will only grant permission under CPR r. 31.22(1)(b) if there are special circumstances that constitute a cogent reason for permitting collateral use: Tchenguiz v SFO, §66(i). The grant of permission is exceptional, in the sense that it is not routinely given: Duke of Sussex v MGN [2023] EWHC 1617 (Ch), §6.
The burden is on the party making the application to demonstrate cogent and persuasive reasons for allowing the collateral use sought: Lakatamia v Su, §53. That burden is a particularly heavy one where the permission is sought by or for the benefit of a person who is not a party to the action in which the documents were disclosed: ACL Netherlands v Lynch [2019] EWHC 249 (Ch), §30.
The court must also be satisfied that there is no unwarranted prejudice to the disclosing party. That means prejudice beyond the mere fact that the documents are able to be used for collateral purposes. Ultimately the court must balance the legitimate interests of the party seeking permission against the legitimate interests of the disclosing party: Duke of Sussex, §§6–7.
What constitutes “use” of a document for the purposes of CPR r. 31.22 is very broad, and is regarded as extending to reviewing the documents for the purposes of considering whether they are relevant to other proceedings. Accordingly, absent some provision in the relevant order, doing anything other than realising, in the course of review for the purposes of the proceedings in which documents are disclosed, that a document or documents would be relevant to actual or contemplated other proceedings, may constitute a collateral use: Tchenguiz v Grant Thornton [2017] EWHC 310 (Comm), [2017] 1 WLR 2908, §§29–31; Lakatamia v Su, §§57, 59(i).
The appropriate course is therefore a two-stage approach. First, as soon as it is identified that there may be documents relevant to actual or contemplated other proceedings, the relevant party should seek permission to review those documents in order to determine whether it is desirable to use them in those other proceedings. Secondly, once that review has taken place, the relevant party can seek permission to deploy those documents in the other proceedings: Lakatamia v Su, §59(ii)–(iii).
These principles should in my judgment apply by analogy to applications for permission under the equivalent provision in COPR r. 5.10(1)(b).
As for the scope of the application for permission, Matthews & Malek on Disclosure (6th ed, 2026) comments at §19-47 that the application for permission under CPR r. 31.22:
“ought to specify clearly the documents in respect of which permission is sought and similar care should be taken in drawing up any order, listing the documents by way of schedule in appropriate cases so there can be no doubt which documents are covered. In general, it is inappropriate to seek a release in respect of disclosed documents wholesale, not least because the court needs to carry out a balancing exercise and it is only in special circumstances that the restriction or undertaking is to be modified.”
In general, therefore, a blanket application for permission in respect of an entire set of documents is unlikely to be appropriate; rather the application should normally be made by reference to specific documents, in order to demonstrate why the circumstances are such as to justify the use of those documents for the collateral purpose sought. A targeted approach is, moreover, likely to be particularly important in Court of Protection proceedings in light of the particular context in which documents have been disclosed in those proceedings, as discussed above.
Privilege
There is no dispute that in so far as the documents qualify for legal professional privilege, that privilege is absolute and cannot be overridden by any other interest: Three Rivers (No. 6) [2005] 1 AC 610, §25. Where there has been a limited waiver of privilege for a particular purpose, it does not follow that privilege is waived generally. The person who receives the privileged material may therefore not use it for purposes other than those for which it was provided: Berezovsky v Hine [2011] EWCA Civ 1089, §§28–29 and 34.
Where the person entitled to claim privilege in documents has died, privilege survives for the benefit of that person’s estate. The consequence is that any further waiver of privilege must be determined by the personal representatives of the deceased.
In the present case, it is common ground that the Court of Protection’s ability to waive privilege on SP’s behalf came to an end when SP died, and that any request for further waiver of privilege must now be made to SP’s personal representatives, whoever they are. (The question of who SP’s personal representatives are for these purposes will need further consideration in due course, given that there are two potential wills in contention, each with different executors. I am not, however, asked to resolve that issue in this hearing.)
Category A and B Documents
The parties’ submissions
The Category A and B Documents are defined in the CA Order as set out at §22 above as any documents to which COPR r. 5.10 applies (Category A) and other documents containing information of which a party is aware because the information is contained within a Category A Document (Category B). The documents are subject to restrictions on collateral use under COPR r. 5.10, as well as the specific restrictions under the CA Order. The initial transparency order (i.e. the RRO) made by Hayden J in July 2020 was a standard transparency order as provided for by Practice Direction 4C, and it is common ground that the restrictions set out in the CA Order also constituted an order made under COPR r. 4.3(2). It is also, as noted above, common ground that the combined effect of COPR r. 5.10 and the CA Order is to prohibit all collateral use of the documents covered by the CA Order, even where they have been read or referred to at a hearing in public.
Sanjay’s position is that the court should now release all restrictions under both COPR r. 5.10 and the CA Order to permit the use of documents identified by the parties’ lawyers as relevant in either the Jersey proceedings or the probate proceedings. Mr Baxter said that any dispute about the relevance of the documents should then be determined by the court seized of those proceedings – i.e. the Royal Court for the Jersey proceedings and the High Court for the probate proceedings.
V&S’s position differs for the Jersey and probate proceedings. In relation to the Jersey proceedings, their primary position is that the parties’ Jersey lawyers should carry out a review for the purposes of identifying relevant documents, and should then return to the Court of Protection for an order releasing those documents from the COPR r. 5.10 and CA Order restrictions, with any dispute as to whether the use of a document should be permitted (including any consideration of relevance) determined by the Court of Protection. Their alternative position is that the court could now permit immediate use in the Jersey proceedings of some of the documents, with a long list of “excluded documents” subject to review and resolution of relevance disputes as under their primary position. That list includes medical records, SP’s care records, documents relating to SP’s hospital treatment, documents relating to contact between SP and his family, financial reports and records regarding SP’s personal affairs, and almost all of the witness statements filed in the Court of Protection proceedings together with their exhibits. In reality, the categories of excluded documents under this alternative proposal are so extensive that they seem likely to encompass the majority of documents in the Court of Protection proceedings that may be relevant to the Jersey proceedings.
In relation to the probate proceedings, Ms Haren KC initially said that the proceedings were in too embryonic a form for any order to be appropriate at this stage. Following the hearing, V&S accepted that the restrictions could be lifted for the purposes of a review by the parties and their current solicitors, so as to identify documents that the parties might seek permission to use for the purposes of a probate claim in due course; but said that there should be no further use of the documents without further order of the Court of Protection.
Discussion
Sanjay effectively seeks a blanket release of the restrictions on collateral use imposed by COPR r. 5.10 and the CA Order. The main justification advanced by Mr Baxter was that SP’s rights of privacy should carry little or no continuing weight following SP’s death. That argument would have carried force in relation to the anonymity orders originally made in the Court of Protection proceedings, but those restrictions were already lifted in 2022 by the order of Hayden J and the subsequent CA Order.
The remaining restrictions set out in the CA Order relate to sensitive information about SP’s diagnosis, healthcare and daily care, as well as the specific further restrictions on the Category A and B Documents disclosed into the proceedings. For the reasons discussed above, I have rejected the argument that specific confidentiality restrictions imposed by the Court of Protection should be lifted, as a matter of principle, following the death of the person subject to the proceedings. Instead, it is necessary for the court to consider whether the specific interest in disclosure of the relevant documents outweighs the interest in the protection of the confidentiality of the personal and sensitive information in those documents. A careful balancing exercise is also required for any application for permission for collateral use pursuant to COPR r. 5.10(1)(b).
As discussed above, that exercise should generally not be carried out on a blanket basis, and it certainly cannot be carried out on that basis in these proceedings. The documents at issue encompass a wide range of materials from different sources. The Court of Protection proceedings were very complex, with more than 20 hearings and over 65 witness statements, plus expert reports covering issues ranging from SP’s care and medical treatment to the management of his financial affairs. I understand that the medical records alone run to around 600 pages of materials. I am not in a position, at this stage, to determine whether the interests in the disclosure of any of those documents into either the Jersey proceedings or the contemplated probate proceedings outweigh the interests in maintaining the confidentiality of the information in those documents.
Mr Baxter’s second main argument in support of Sanjay’s approach was that any assessment of relevance to the other proceedings can only be made by the court in which the documents are sought to be deployed, i.e. the Royal Court for the Jersey proceedings or the High Court for the probate proceedings. I do not accept that submission, and note that the same submission was rejected by the Court of Appeal in Tchenguiz v SFO, concerning documents for deployment in Guernsey proceedings. At §96 the court held that it was for the English courts to deal with the permission issue under CPR r. 31.22. The Court of Protection is capable of making an assessment of relevance, in general terms, on the basis of the information it is given about the purpose for which the documents are required, and that assessment will inevitably need to form part of the balancing exercise carried out in order to determine whether disclosure is appropriate.
The Royal Court in Jersey and the High Court in this jurisdiction will no doubt review the question of relevance further, if and when the documents are sought to be introduced in the Jersey proceedings and probate proceedings respectively. But that does not mean that the question of relevance cannot be taken into account now by the Court of Protection in deciding whether it is appropriate for the prohibition under COPR r. 5.10 and the restrictions in the CA Order to be lifted. Indeed, it is difficult to see how the balancing exercise required by the authorities can possibly be carried out if the Court of Protection is not able to consider the relevance of the documents to the proceedings in which they are sought to be deployed. Re AB is an example of the court carrying out such an assessment, concluding that the expert’s reports were not in fact relevant to the issue that the police had to determine (§§9–12). Likewise in Tchenguiz v SFO the Court of Appeal considered the relevance of the documents in issue to the Guernsey proceedings (§78). There was no suggestion in either case that the court might have any difficulty making that assessment for itself.
Mr Baxter also argued that it is in the interests of justice for relevant documents to be allowed to be used in the Jersey proceedings, referring to the January 2026 judgment of Commissioner Bailhache. V&S do not dispute that it may be relevant for the Jersey Royal Court to have before it some of the documents disclosed in the Court of Protection proceedings. That does not, however, suggest that the Court of Protection should release its restrictions on the use of the documents on a blanket basis, without further scrutiny. Indeed, Commissioner Bailhache expressly recognised at §23 of his judgment that it is a matter for the Court of Protection to decide whether and if so to what extent documents should be released from the restrictions applicable to its proceedings.
The appropriate course is therefore to vary the restrictions under the CA Order, and to give permission under COPR r. 5.10, to the extent necessary to permit the parties and their lawyers to review the documents for the purpose of identifying documents that may be relevant to the Jersey proceedings and/or the contemplated probate proceedings. Once that first-stage review has taken place, the parties can seek further permission from the Court of Protection to use those documents for the purposes of the relevant proceedings. That is consistent with the two-stage approach recommended in Lakatamia v Su, and will also enable the Court of Protection, at the second stage, to assess the justification for disclosure by reference to the specific documents sought.
Other non-privileged documents
The parties’ submissions
Since the hearing, the parties have identified a further potential category of non-privileged documents, namely documents not filed or used in the Court of Protection proceedings, but which might contain “information” relating to SP as defined in §10 of the CA Order.
V&S say that no order is necessary, given that the use of such information is already permitted under §13.6 of the CA Order. Sanjay’s position is that the court should, for the avoidance of doubt, release the restrictions in §§9–13 of the CA Order in relation to those documents. That would then cover any documents that were generated in the course of the proceedings but were not (for whatever reason) filed and used in those proceedings.
Discussion
While §13.6 of the CA Order permits the use of “information” as defined in the order where that information has been acquired other than in the course of the proceedings, it is possible that a document containing the defined “information” may have been in some way generated by a party in the course of the proceedings but not filed or used in the proceedings. To avoid any potential further dispute, any restrictions on documents in that category which subsist under §§9–13 of the CA Order should now be lifted. V&S have not objected to that (indeed their position is that there are already no such restrictions); and there is no reason why the Court of Protection should maintain any ongoing restrictions in relation to documents containing “information” relating to SP as defined in the CA Order, if those documents were not in fact filed or used in the Court of Protection proceedings.
Scheduled Main Documents
The parties’ submissions
As set out at §§15–19 above, the Scheduled Main Documents were disclosed into the Court of Protection proceedings following a limited waiver of privilege ordered in the Cohen Order, and subject to the Express Undertakings given by the Authorised Persons under the order. They are also subject to the restrictions on collateral use under COPR r. 5.10, and the restrictions imposed by the CA Order.
It is common ground that the effect of the Express Undertakings is to prohibit Sanjay from making any application to the court in relation to the Scheduled Main Documents, including an application to release the restrictions under COPR r. 5.10 and the CA Order. It is also common ground that, irrespective of the restrictions imposed by COPR r. 5.10 and the CA Order, the Scheduled Main Documents cannot be deployed in any other proceedings without a waiver of privilege by SP’s personal representatives, given that privilege survives for the benefit of SP’s estate.
Sanjay’s submission is that the court should therefore vary the Express Undertakings to permit a further application to be made to release the restrictions under COPR r. 5.10 and the CA Order, with a view to enabling Sanjay and Withers to identify documents that are potentially relevant to the Jersey proceedings and/or the probate proceedings, and then to ask SP’s personal representatives whether they are willing to waive privilege in those documents for the purposes of disclosure into those proceedings.
V&S’s submission is that the limited waiver given by the Court of Protection on behalf of SP does not currently permit any form of targeted review for the purposes of identifying documents that might be relevant to other proceedings. Accordingly, V&S say that the first step must be for SP’s personal representatives to waive privilege further so as to permit that review. Since, on that basis, it would not be possible for Sanjay to make a targeted request for a waiver of privilege in certain potentially relevant documents only, V&S accept that Sanjay would have to ask SP’s personal representatives to waive privilege in the totality of the Scheduled Main Documents, at least for the purposes of allowing Sanjay and his legal representatives to make specific requests for privilege to be waived further so as to permit the disclosure of the documents into other proceedings.
Discussion
The problem regarding the Scheduled Main Documents is that they are covered by four layers of protection: (i) the limited waiver of privilege; (ii) the Express Undertakings; (iii) the CA Order; and (iv) COPR r. 5.10. As discussed above, the effect of the restriction on collateral use under COPR r. 5.10 is that the parties cannot review the documents at all for the purpose of considering their relevance in other proceedings. That is why it is necessary, for the Category A and B Documents, for the restrictions under the CA Order to be varied, and permission under COPR r. 5.10 to be given, so as to permit the parties and their lawyers to carry out that review.
In relation to the Scheduled Main Documents, it is common ground that Sanjay cannot even ask this court to make that order until the Express Undertakings are varied so as to permit an application to vary the CA Order and give permission under COPR r. 5.10. Sanjay’s submission is that the court should therefore vary the Express Undertakings now, following which it will then be open to him to apply to vary the CA Order and provide permission under COPR r. 5.10 to permit a review for relevance, prior to asking SP’s personal representatives to waive privilege by reference to specific documents.
That proposed sequence of events does not, however, address the effect of the limited waiver of privilege in the Cohen Order, which provides that the waiver is “only for the limited purpose of the use by all parties in these proceedings in the Court of Protection”. As regards collateral use, that provision has essentially the same effect as the primary prohibition on “use” under COPR r. 5.10. A review for the purpose of considering whether the documents are or might be relevant to other proceedings is therefore a collateral use prohibited in the same way as under COPR r. 5.10: see §54(iv) above. The waiver is also conditional on the provision of the Express Undertakings by the Authorised Persons.
If SP had been alive and still subject to the Court of Protection proceedings, it would have been open to the Court of Protection to vary both the limited waiver and the Express Undertakings (noting that the release or variation of those undertakings is expressly contemplated by the liberty to apply provision at §17 of the Cohen Order: see §18 above). That variation might have permitted a broader use of the privileged documents. Following SP’s death, however, it is common ground that it is no longer open to the Court of Protection to waive privilege any further on SP’s behalf. This court cannot, therefore, now provide for privilege to be waived so as to permit a more extended use of the Scheduled Main Documents than contemplated by the limited waiver in the Cohen Order; nor can it vary the Express Undertakings on which the limited waiver in the Cohen Order is expressly conditional.
V&S are therefore correct to say that the first step has to be further waiver of privilege by SP’s personal representatives (including a corresponding variation of the Express Undertakings). That does not have to be a waiver of privilege in toto. Rather, it would simply need, at least, to permit (i) an application to be made to vary the CA Order and for permission to be given under COPR r. 5.10, enabling a review of the documents for relevance, and thereafter (ii) that review to be carried out by the relevant parties. Following that review, the parties will be able to make a targeted request for waiver of privilege for the purposes of use in other proceedings, as well as an application to the court to vary the CA Order and for permission under COPR r. 5.10, as with the second stage of the procedure set out above for the Category A and B Documents. In the meantime, however, unless and until the initial further waiver of privilege has been given, this court cannot make any further order in relation to the Scheduled Main Documents.
Documents referring to the Scheduled Main Documents
The parties’ submissions
Only two documents referring to the Scheduled Main Documents are identified: a report from Dr Jefferys dated 24 February 2021 and a report from Andrew Hine, the deputy appointed by the Court of Protection. In so far as the documents refer to privileged material in the Scheduled Main Documents, they are covered by the same restrictions as for the Scheduled Main Documents. Any part of the report of Dr Jefferys referring to the Scheduled Main Documents is also expressly confidential under the Cohen Order.
Sanjay’s submission is that the position for these documents should be the same as for the Scheduled Main Documents. The position of V&S appears to be that privileged material in the documents should be redacted until the issue of privilege in the Scheduled Main Documents is resolved; and that otherwise the procedure should be the same as for the Category A and B Documents.
Discussion
It follows from my conclusions above that any material from the Scheduled Main Documents that is cited in or referred to in these further documents must, as V&S submit, be redacted until privilege in the Scheduled Main Documents is waived so as to permit further review of that material.
The remainder of the documents (i.e. the content that does not refer to the Scheduled Main Documents) can appropriately be addressed in the same way as the Category A and B Documents.
Scheduled LPA Documents
The parties’ submissions
The Scheduled LPA Documents are subject to a limited waiver of privilege on terms that, as with the Scheduled Main Documents, limit use to the Court of Protection proceedings. Unlike the Scheduled Main Documents, however, the Scheduled LPA Documents are not additionally subject to the Express Undertakings.
Sanjay’s submission is that, since the Express Undertakings do not apply, this court can and should now release the restrictions under COPR r. 5.10 and the CA Order so as to permit a review of the documents for relevance by Sanjay and Withers, as a first step towards seeking a waiver of privilege for the purposes of disclosure into the Jersey proceedings and/or the contemplated probate proceedings.
V&S’s submission is the same as for the Scheduled Main Documents: that no further steps can be taken until privilege has been further waived by SP’s personal representatives.
Discussion
The Scheduled LPA Documents are covered by three layers of protection: (i) the limited waiver of privilege; (ii) the CA Order and (iii) COPR r. 5.10. As with the Scheduled Main Documents, the effect of the limited waiver of privilege is to preclude further steps to review the documents until privilege has been waived for that purpose. Again, that is not something that this court can now do, following the death of SP.
As with the Scheduled Main Documents, therefore, V&S are correct to say that the first step has to be a further waiver of privilege by SP’s personal representatives, so as to permit at least (i) an application to be made to vary the CA Order and for permission under COPR r. 5.10 so as to permit a review of the documents for relevance, and thereafter (ii) that review to be carried out by the relevant parties. The court cannot make a further order in relation to those documents until that waiver has been given.
Other privileged documents
The parties’ submissions
In addition to the Scheduled Main Documents and the Scheduled LPA Documents, it appears that there may be further privileged documents that were disclosed for the purposes of the proceedings, but which were not specifically listed in the Second or Third Schedule to the Cohen Order.
In relation to those documents, the parties’ positions are essentially the same as for the Scheduled LPA Documents: Sanjay says that the court can and should now release the restrictions under COPR r. 5.10 and the CA Order, and V&S say that any waiver of privilege was impliedly limited such that no further steps can be taken until privilege has been further waived by SP’s personal representatives.
Discussion
Where privilege is waived, the question of whether that waiver was limited and the parameters of that limitation are to be determined by reference to all the circumstances of the waiver: Berezovsky v Hine, §29. As set out above, the Scheduled Main Documents and Scheduled LPA Documents were disclosed subject to specifically limited waivers of privilege, to ensure that the documents were only used for the purposes of the Court of Protection proceedings. There is nothing before me to suggest that the parties intended any other privileged documents to be treated differently in that regard if they were disclosed into the proceedings.
Accordingly, in so far as any further privileged documents were provided for the purposes of the Court of Protection proceedings, any waiver of privilege must be regarded as impliedly limited to the use of those documents for the purposes of the proceedings. On that basis the position regarding their further use must be the same as for the Scheduled LPA Documents.
Conclusions
For the reasons set out above, my conclusions for the six categories of documents at issue in these proceedings are as follows:
Category A and B Documents: the restrictions under the CA Order will be varied, and permission given under COPR r. 5.10, to permit the parties and their lawyers to review the documents for the purposes of identifying documents that may be relevant to the Jersey proceedings and/or the contemplated probate proceedings. Once that review has taken place, the parties can seek further permission from the Court of Protection to use those documents for the purposes of those other proceedings.
Other non-privileged documents: any restrictions under §§9–13 of the CA Order will be lifted in relation to non-privileged documents containing “information” relating to SP as defined in that order, where those documents were not filed or used in the Court of Protection proceedings.
Scheduled Main Documents: no further order can be made at this stage. The first step must be a further waiver of privilege by SP’s personal representatives, including a corresponding variation of the Express Undertakings, so as to permit an application to vary the CA Order and for permission under COPR r. 5.10, followed by a review of the documents for relevance.
Documents referring to the Scheduled Main Documents: any material from the Scheduled Main Documents that is cited in or referred to in those documents must be redacted unless and until privilege in the Scheduled Main Documents is waived so as to permit further review of that material. The remainder of those documents will be dealt with in the same way as the Category A and B Documents.
Scheduled LPA Documents: no further order can be made at this stage. As with the Scheduled Main Documents, the first step must be a further waiver of privilege by SP’s personal representatives, so as to permit an application to vary the CA Order and for permission under COPR r. 5.10, to enable a review of the documents for relevance.
Other privileged documents: in so far as any further privileged documents were provided for the purposes of the Court of Protection proceedings, they should be treated in the same way as the Scheduled LPA Documents.
I will hear the parties on the form of order to give effect to the conclusions set out above, and any consequential matters.