The Court of Appeal has allowed the appeal in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements) [2026] EWCA Civ 640, overturning Poole J’s approach in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3).

The Court confirmed that Court of Protection proceedings remain private by default, even where hearings are held in public, and that position statements filed with the court are court records but are not automatically disclosable to observers or non-parties.

Any disclosure requires court authorisation and a careful balancing exercise, particularly where position statements contain highly personal material engaging Article 8 rights.

The Court also indicated that, pending further procedural guidance, courts should consider providing observers with case summaries, chronologies or lists of issues rather than position statements.

Link to the Judgement: https://www.bailii.org/ew/cases/EWCOP/2025/25.html

What does this mean?
PDF members involved in Court of Protection litigation should not assume that position statements can or should be shared with public observers, and should consider confidentiality, redaction and Article 8 implications before any disclosure is proposed.