The Court of Protection has today published a further judgment in Irwin Mitchell Trust Corporation v PW & Anor [2026] EWCOP 53 (T2). The judgment follows the Court’s 2024 decision regarding Irwin Mitchell Trust Corporation’s appointment of IM Asset Management Ltd, a company within the wider Irwin Mitchell group, as investment manager for PW, which the Court found to be a breach of the self-dealing rule.

The latest judgment considers the consequences of that breach and whether the appointment should be retrospectively ratified. Irwin Mitchell Trust Corporation sought ratification of the appointment of IM Asset Management Ltd and the continuation of its appointment as PW’s property and affairs deputy. Both the Official Solicitor and the Public Guardian opposed retrospective ratification.

HHJ Hilder was not prepared to grant unconditional ratification. The Court found that PW had a claim of real, albeit presently unquantified, value which should not simply be given up. Ratification was therefore granted on the condition that Irwin Mitchell Trust Corporation pays into PW’s estate a sum equal to 60% of her potential claim, calculated using the “receipts approach”. If Irwin Mitchell Trust Corporation accepts the condition and makes the required payment, it can remain as deputy. If it does not, an application must be made for its discharge and the appointment of a replacement professional deputy.

PW’s case is not the only one affected. The judgment identifies approximately 260 other individuals for whom either Irwin Mitchell Trust Corporation or an individual employee of the Irwin Mitchell group acts as property and affairs deputy and had appointed IM Asset Management Ltd as investment manager. Those arrangements are presently subject to an agreed scheme intended to manage the continuing conflict. The safeguards include a high-level independent review of the general suitability of the investment arrangements by an Independent Financial Adviser with appropriate Court of Protection and personal injury expertise.

An important takeaway from the judgment is that good investment performance and reasonable fees do not in themselves remove a conflict of interest. Importantly, there was no suggestion in PW’s case that the issue arose because of poor investment performance or unreasonable charges. The Court proceeded on agreed assumptions that the investment performance achieved and the fees charged were consistent with those of a reasonable and experienced investment manager. Nevertheless, the breach of the self-dealing rule and PW’s resulting claim still required consideration.

For deputies, this places greater emphasis on the process by which investment managers and other professional advisers are selected, rather than simply whether the eventual outcome is financially acceptable. Before making an appointment, deputies should identify any financial, corporate or other business connection with the proposed provider and consider whether this gives rise to an actual or potential conflict. Where competing providers are being considered, the selection process should be sufficiently robust to demonstrate why the chosen provider is appropriate for the Protected Party, with the alternatives considered, any relevant connections and the reasons for the ultimate decision clearly recorded.

The judgment is also a reminder that disclosure alone should not be treated as resolving a conflict and highlights the importance of keeping existing investment arrangements under appropriate review, as well as carefully considering new appointments. Where a connected provider is involved, deputies should consider whether any potential conflict has been identified and appropriately addressed. This is particularly important where arrangements have been in place for a number of years or were established some time ago and have continued on an ongoing basis. Maintaining a clear audit trail of the decision-making process will assist in demonstrating that the deputy has acted with the Protected Party’s best interests at the forefront and has properly considered any potential conflict arising from a connected provider.

 If you have any questions or require assistance with Court of Protection costs, please contact Ella Wilkinson (ella.wilkinson@clarionsolicitors.com) who is a Senior Associate in the Costs and Litigation Funding Team at Clarion Solicitors.