COURT OF PROTECTION

MENTAL CAPACITY ACT 2005

Hearing the deputy (Essex County Council) and the solicitor for Richard Bruce Browning-Smith (Mr Christopher Andrews) at a telephone hearing, the purpose of which was to review developments since the last hearing and order on 14 June 2012, and to give further directions.

The other parties not participating.

There are two distinct sets of applications before the court.

The substantive applications

The first set involves applications for court orders made by the deputy of Richard Geoffry Browning-Smith ('the person concerned' or 'P') in respect ol his property and affairs (the 'substantive applications').

The parties to the first set of applications are:

1. Essex County Council (Applicant and deputy of the person concerned)
2. Richard Bruce Browning-Smith (First Respondent and the son of the person concerned)
3. Aileen Jane Lester (Second Respondent and the daughter of the person concerned)

The media applications

The second set involves applications by media organisations for permission to attend and report the substantive proceedings, subject to the court's discretion to decide which, if any. elements may be reported (the 'media applications').

The parties to the second set of applications are:

1. Independent Print Ltd and Others (Applicants)
2. Richard Geoffry Browning-Smith (First Respondent, "the person concerned' or 'P' by his litigation friend the Official Solicitor)
3. Essex County Council (Second Respondent and deputy for the person concerned)
4. Richard Bruce Browning-Smith (Third Respondent and the son of the person concerned)
5. Aileen Jane Lester (Fourth Respondent and the daughter of the person concerned).

Within the second set of proceedings. Independent Print Ltd are the lead Joint Applicant. The other Joint Applicants are the Press Association Ltd. Guardian News and Media Ltd and Telegraph Media Group Ltd.

Developments since 14 June 2012

The various applications were last before this court for an attended hearing on Thursday 14 June 2012. when the Joint Applicants were all either present or represented.

There have been significant developments since then, which these lengthy recitals and directions try to summarise for the parties. The aim is to ensure that justice is done, that proper account is taken of all mental health issues and that the case is managed efficiently.

Because of the sensitive nature of some of the information contained in the order, no part of it may be published without a further order from this court or another court of competent jurisdiction.

The court has been informed of the following events:

Habeas corpus application (Case No. CO/7416/2012)

Following the last hearing before this court, Richard Bruce Browning-Smith applied to the High Court for an order releasing his father from what he described as false imprisonment

This application was initially heard by the Honourable Mr Justice Bean on 18 July 2012.

The Official Solicitor was invited to assist the High Court in ascertaining the merits of the habeas corpus application, which it is understood is not being taken any further.

Unless this is incorrect, the habeas corpus application no longer appears to have any possible impact on the substantive applications before this court

Application to the European Court of Human Rights (Browning-Smith v the United Kingdom, Application No. 50758/12)

Richard Bruce Browning-Smith has also applied to the European Court of Human Rights.

The nature of this application is not entirely clear. It appears to relate mainly to a case transferred from Northampton to Colchester County Court, and subsequently transferred again ('Colchester court will need to take directions from Strasbourg ECHR,' according to an email dated 19 September 2012).

The Court of Protection Ls referred to in an email concerning the ECHR application dated 18 September 2012 ('Thanking you for a speedy resolution to this most unpleasant problem you now have in being held to account for your personal actions in Strasbourg a far superior court than COP also independent of UK).

Notwithstanding that email reference, the ECHR application docs not appear to impact on the substantive applications before this court

Other court proceedings

There appear to be (or until recently to have been) other unresolved legal proceedings in which Richard Bruce Browning-Smith is, or has been, a party. These include upsetting family proceedings involving contact issues and financial matters (Case No. FD09001932, possibly the same case as that referred to in paragraph 16 above), and proceedings concerning unpaid legal fees, involving (it seems) Birkett Long LLP.

Having regard to the above and all the other relevant circumstances, including the matters set out below, it is likely that Richard Bruce Browning-Smith has been, and is, subject to massive stress.

Emails to the Court of Protection

Richard Bruce Browning-Smith has sent many emails to Ms VE, a member of the court's Listing & Appeals office who manages and administers cases on behalf of the judges. These emails include:

1. Facebook invitations dated 31 July 2012 ('Richard Bruce Browning-Smith wants to be your friend on Facebook'), 9 August 2012 and 5 September 2012 (In both instances, 'Check out my photos on Facebook.' 'Richard Bruce Browning-Smith wants to share photos and updates with you')
2. Twitter invitations dated 4 September 2012 ('Find out why I love Twitter. Instant updates about news, sports, entertainment And you.) and 21 September 2012
3. An invitation to join his professional network on LinkedIn (Email dated 6 September 2012)

It is said that he has also made upsetting and untrue allegations on Facebook (and possibly other websites) about named individuals in the employment of the deputy that are considered to be potentially defamatory.

Misreporting of the court's order of 14 June 2012

On 15 June 2012, Richard Bruce Browning-Smith sent an email [to Ms VE] thanking the judge 'for allowing the media to report fully on this case' and he appears to have given this message out to third parties: 'The media is allowed to report on COP case as ordered by Judge Eldergil [sic]' (Email of 10 September 2012).

Litigation capacity of Richard Bruce Browning-Smith

The court reminds Richard Bruce Browning-Smith of paragraph (7) of the court's order of 18 May 2011:

'(7) The court also reserves the right to take action in relation to the contraventions of previous orders, which includes dealing with those contraventions as contempts of court, but will have regard to Richard Bruce Browning-Smith's compliance and co-operation today and in the future before deciding whether any action is required, together with any new evidence of misappropriation and the matters referred to in section 4 (his father's best interests, including any wishes and feelings of his father).'

Adopting or applying the traditional enforcement strategy for breaches of court orders may be inhumane or inappropriate in Richard Bruce Browning-Smith's case.

The court order of 14 June 2012 provided for one of the Court of Protection's Special Visitors to visit him and to file a report by 25 August 2012. This report was to address the following issues:

1. Whether he has capacity to conduct the proceedings;
2. Whether he has capacity to consent to the Joint Applicants publishing reports of these proceedings;
3. The effect of these proceedings on his mental health and how any adverse effects can best be minimized and/or managed;
4. Any other relevant matters that the Special Visitor considers the Court ought to be aware of.

Subsequently, Richard Bruce Browning-Smith withdrew his agreement to being seen by the Special Visitor who has been unable to report to the court.

An apparently undated but recent report from social worker SC, his care coordinator, gives SC's opinion that since 2010 Richard Bruce Browning-Smith has had capacity to make decisions for himself.

Notwithstanding this, having regard to his refusal to sec the Special Visitor, the history of this case, recent events, his breaches of court orders, his misunderstanding of the last order and the content of his emails, the court considers that his litigation capacity remains an issue that requires determination. His emails include passages such as the following:

'As you are Chinese [sic] person you have no fear of being in contempt of UK court, or any repercussions thereof... Currently ESSEX COUNTY COUNCIL ARE FIGHTING THE UK MEDIA !!!!!! they have no chance in this case very easy for you to win.' (Email of 14 June 2012)

'Since the report on BBC1 about history of English Law & HABEAS CORPUS, I have carefully considered my position, and clearly state I do not agree to a special visitor arranging to see me.

As in the above program, the Star chamber court was eventually abolished, similar is already being considered of the COP. a court that has no Jury to prove guilt and to have powers of Life imprisonment Ridiculous' (Email of 23 July 2012)

7 remember seeing this neighbour in with my Fathers social worker ... he also told her I was a mental case, during that time he phoned me up

and threaten me on the telephone saying I was mistreating my father and when

he saw me next he would kill me.

He also told my Father that I was taking things from our house, this neighbour has CCTV pointing at my house, may 1 ask what business is it of his to keep me under 24/7 observation . He may say it is to protect his property, but my Fathers and my property are our concern not his.

fit J is through [the] greed and interference of a neighbour that I and my Family are in this predicament' (Email of 16 August 2012).

In relation to his litigation capacity, the court notes that Richard Bruce Browning-Smith copies to the court emails which appear to have no relevance to the issues before this court; for example, emails about a project in Mali and negotiations about the acquisition by him of an Indian takeaway restaurant.

The court also notes that he has been reminded by legal advisors of the need to be sensitive, to make sure that he sends emails 'only to those needed,' and about posting comments about 'local council officers' on his Facebook pages. He has either unwisely chosen not to follow legal advice or is unable to.

Property and affairs of Richard Bruce Browning-Smith

The court is increasingly concerned about Richard Bruce Browning-Smith's capacity to manage his own property and affairs. In addition to the deputy's application to this court that he repays money misappropriated from his father, he may owe significant legal fees to more than one firm of solicitors in connection with litigation and/or have to make ancillary relief or child support payments.

As concerns his various legal cases, Richard Bruce Browning-Smith stated in an email to the Northampton court on 24 July 2012 that:

'All cases are conjoined financially .... In the COURT OF PROTECTION my finances are conjoined with my Fathers on the order of Judge ELDERGILL. This is the case of my finances on divorce and the accusations of ESSEX COUNTY COUNCIL

As you will appreciate this is a very high profile case, with all the MEDIA INVOLVED, I also attach for you an article from the paper about the case of my Father, and the fact that ESSEX COUNTY COUNCIL and myself are in a conflict at both the court of protection, and the HIGH COURT regarding false imprisonment of FATHER and their attempts to sell family heirlooms without court orders.

In the COURT OF PROTECTION my finances are conjoined with my Fathers on the order of Judge ELDERGILL. This is the case of my finances on divorce and the accusations of ESSEX COUNTY COUNCIL who have appointed themselves as my Fathers deputy, and are accusing me of talking between £7HK to £135k of my fathers money plus they are asking for costs. Worst case scenario the total involved is £150.000.00 this amount then means I do not have enough assets to cover my liabilities, in any payments as large as your fees ESSEX COUNTY COUNCIL, may want full details off you as to why'

He has signed an unusual co-operation agreement with Lan Peng Beijing Law Firm Prc. At the end of some emails,, he has described himself as 'International MOU Law Adviser for Chinese Law Firms and Co-operation with Rest of World.'

Statutory Will application

The deputy has applied to the court for permission to execute a statutory will on behalf of Richard Geoffry Browning-Smith.

On 18 May 2011, Richard Bruce Browning-Smith told the court that he believed that a neighbour was in possession of a Will signed by his father and by one witness (sic) in 2009. He did not himself possess, or know of, any other Wills or Codicils signed by his father. This information was read over to him at the time and he confirmed that it accurately recorded his oral evidence.

Notwithstanding the preceding paragraph, the court is concerned by the possibility that there exists a valid Will which a statutory Will would revoke or a Will of questionable validity that excludes person(s) whom the testator might be expected to provide for.

In an email dated 3 October 2012, Richard Bruce Browning-Smith stated that he objects to the Statutory Will proposed for his father, on the ground that his son and his sister's children should not be included in their grandfather's Will: 'I will be sending this evidence to Strasbourg France & asking for full disclosure as to how they have arrived at such a WILL is not what my Father WANTS!'

The existing application appears not to comply with the relevant Practice Direction and no Litigation Friend has been appointed for Richard Geoffry Browning-Smith in relation to it.

Issues for the court to consider

From the above, it can be seen that there are a number of issues for the court to consider:

1. Cost and proportionality

   Many issues have been raised by Richard Bruce Browning-Smith and many people and organisations have been involved by htm in their resolution. His solicitor has been of great assistance in trying to resolve matters and has provided a valuable public service. At least until recently, he appears not to have been paid regularly. Likewise, Essex County Council have spent an enormous amount of public time and resources trying to ensure that Richard Geoffry Browning-Smith's best interests are safeguarded. The general rule in property and affairs cases is that the parties' legal fees are chargeable to 'P's estate'.

   Richard Geoffry Browning-Smith s funds are now limited. It is critical that the financial cost to him of these proceedings does not affect his future care options or exceed what is in his best interests.

   Given that the main dispute is whether heirlooms need to be, and should be, sold, a Bleak House/'Jarndyce v Jarndyce' situation cannot be allowed to develop which results in them having to be sold in order to pay legal fees and costs incurred litigating over whether they need to be sold.

2. The publication of information about the proceedings on Facebook and by email, which may constitute contempt of court.
3. The fact that some of this information is said to be offensive and/or injurious to the reputation and feelings of persons performing the deputy's functions on the court's behalf.
4. The sending of emails to court staff which are inappropriate, either because they are personal or because their frequency and/or wide-ranging content interferes with the efficient management and resolution of issues.
5. The sending of emails to Essex County Council and/or Essex Guardians which are inappropriate, and whether the court should release them from any obligation to reply to such emails.

   With regard to paragraphs (d) and (e), Richard Bruce Browning-Smith has the benefit of a solicitor through whom he can communicate with the court and if he chooses to write in person he can do so by letter. Filing and service by email requires the court's prior permission.

6. Whether Richard Bruce Browning-Smith requires a Litigation Friend in these proceedings.

   Because Richard Bruce Browning-Smith did not co-operate with the agreed assessment of his litigation capacity, the court proposes to hold a half-day fact-finding hearing to determine whether or not he has litigation capacity. He may give oral evidence at that hearing and call his care co-ordinator to give oral evidence on his behalf If he requires or wishes to call any other witnesses, he should discuss this with his solicitor.

   If it is appropriate to appoint a Litigation Friend for Richard Bruce Browning-Smith, it may be that the parties can resolve some of the outstanding issues justly and fairly by a consent order, in which case a reasonable and proportionate amount of time and expense can be targeted on the issues which remain.

   If it is not appropriate to appoint a Litigation Friend for Richard Bruce Browning-Smith, the court will need to take a robust approach

   to some issues in order to ensure that the costs are proportionate to their significance and what his father can afford.

7. Whether Richard Bruce Browning-Smith requires a Litigation Friend to be authorised to act for him in any other legal proceedings.
8. Whether Richard Bruce Browning-Smith requires an interim deputy for property and affairs to be appointed for him.

   In the context of his medical condition, the court is concerned by the fact that Richard Bruce Browning-Smith has misused his father's money. As his solicitor reminded him. There is still to be a repayment by you to your father's estate at some point whether by agreement or by court order in the future.'

   The court is also concerned by the possibility that he has, or is, incurring significant debts that he is or will be unable to meet, e.g. legal fees, and that his decisions here may be affected by an impairment or disturbance of the mind or brain.

   If an application is made to the court for an interim deputy to be appointed for Richard Bruce Browning-Smith, at the half-day factfinding hearing the court will also consider whether there is reason to believe that he lacks capacity to manage his own property and affairs such that it is in his best interests for the court to appoint an interim deputy to manage them on his behalf

9. The appropriate way in which to enforce compliance with court orders.

   The court intends to be as compassionate as possible.

10. Whether it is in Richard Geoffry Browning-Smith's best interests to make a statutory Will on his behalf and, if so, in what terms.

    The issues here appear to include whether Richard Geoffry Browning-Smith lacks testamentary capacity; whether it would be prudent to make a statutory Will for him, so as to avoid upsetting and expensive litigation later; and what provision to make for grandchildren. The court will need to consider the situation concerning Lavender Cottage.

11. The important issues raised by the applications concerning the media's attendance at, and reporting of, hearings and orders.

    The court repeats that it has no reservations about the Joint Applicants attending hearings and receiving information about the proceedings, provided that nothing is published without the court's agreement. It is confident that the court and the parties can work together to ensure that the press's legitimate interest in the administration of justice is respected and, wherever possible, assisted.

12. (item missing)
13. (item missing)
14. Whether the court should ask one of its Special Visitors to review Richard Geoffry Browning-Smith's current circumstances, in order to ensure that he is as happy and contented as possible.