What is a litigation friend?

In civil proceedings, it is sometimes necessary for a party in a case to have a litigation friend appointed for them. The role of the litigation friend is to make decisions in the court case on behalf of that party. These decisions will be about the steps that have to be taken in the legal case. They can vary from, for example, decisions such as choosing which solicitor and barrister should represent the protected party to deciding what evidence (such as witness evidence or expert evidence) needs to be obtained in the case to making a decision to accept an offer of settlement from the opponent.

A litigation friend is required where the party lacks the mental capacity to conduct the court proceedings themselves (Rule 21.2(1) of the Civil Procedure Rules). They are then known as a ‘protected party’. Children may also require a litigation friend but the circumstances where this is required are not dealt with in this article.

You might be asked to act as a litigation friend for a friend or family member in a court case or the Court might determine that you need a litigation friend yourself and appoint one for you.

What does it mean to lack capacity to conduct court proceedings?

“Capacity” means whether someone is able to make their own decision about something.  The law says that someone will lack capacity if they are unable to make a decision for themselves in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain.

When considering if someone is unable to make a decision for themselves, you have to consider whether the person is unable:

 (a)      to understand the information relevant to the decision,

(b)      to retain that information, (so whether someone can remember it)

(c)       to use or weigh that information as part of the process of making the decision

(d)       to communicate his decision (whether by talking, using sign language or any other means).

Their inability to do one of these four things has to be because of a condition that affects their mind or brain for example, dementia or a learning disability. It is of course not the case that everyone with a condition that affects their mind or brain will lack capacity.

In respect of making decisions in court proceedings, case law sets out that you should look at whether, once they have received advice and support from a legal advisor and any other relevant expert in the case, the person in question is capable of understanding the issues in the case so that they can make the necessary decisions about what should happen.

Who decides whether someone lacks capacity to conduct court proceedings?

It is the Court who makes the decision about whether someone lacks capacity to conduct the court proceedings. Usually a medical professional such as a GP or a psychiatrist will provide evidence to the Court about whether the person is able to make decisions in the court case themselves and the Court will make the decision based on that evidence. However, it is also possible for the Court to reach this view on the basis of the evidence before it which may be, for example, the evidence given directly by the person themselves at a hearing.

Once the Court has determined that a person lacks capacity to conduct the proceedings and requires a litigation friend, the court proceedings cannot move forward until a litigation friend is appointed (unless the Court grants specific permission).

What does a litigation friend do?

A litigation friend has to act fairly and competently and have no adverse interests to the protected party. They have to act in the protected party’s best interests throughout their case and where possible, take into account their wishes and feelings about how the case should progress. Ultimately though, the litigation friend makes the decisions about what steps should be taken in the court case on behalf of the protected party. It is a big responsibility and should not be undertaken lightly.

Anyone can be a litigation friend – they do not have to be a lawyer. In fact most of the time, they won’t be – they will usually be a friend or a family member. The Office of the Official Solicitor is a government body that acts as litigation friend where certain criteria are met, including where there is no one else available to act as litigation friend.

If I want to act as someone’s litigation friend, what should I be thinking about?

If you want to or have been asked to act as someone’s litigation friend, you need to consider whether you are able to make decisions in the case fairly and competently on behalf of the protected party and whether you have any adverse interests to the protected party.

When thinking about whether you can make decisions fairly and competently, you should bear in mind that being involved in a court case involves a high level of responsibility, and requires a considerable amount of time and effort. You need to be sure that you are able to undertake what is involved on behalf of the protected party. An example of a situation in which it might not be appropriate for you to act as someone’s litigation friend is if you know that you are going to have an operation and your recovery time will take six weeks during which the trial for the case is listed. You should consider whether you would be suitable to act as someone’s litigation friend during that period as you may not be well enough yourself to focus on the court proceedings.

An adverse interest to the protected party is any situation where there might be a conflict between something you want for yourself and something that the protected party wants or needs. So for example, in a dispute about a protected party’s house, if you live with them and want to remain living there but the advice from professionals is that the protected party might need a different type of accommodation, then you would have an adverse interest to the protected party and should not act as their litigation friend.

You cannot be appointed as someone’s litigation friend unless you consent to act for them.

How can I be appointed as someone’s litigation friend?

There are two ways you can be appointed as someone’s litigation friend. Firstly, you can complete a Certificate of Suitability of Litigation Friend. You should send it to the other parties in the case and then send it to the Court with a certificate of service which shows that you have sent it to the other parties. If you are a deputy for the protected party appointed by the Court of Protection and you have the specific power to conduct legal proceedings on their behalf, you can send the official copy of the Court of Protection order to the Court and the other parties. Alternatively, the Court can appoint you by making an order to that effect.

How can I be removed as someone’s litigation friend?

If the protected party regains capacity to make decisions about the court proceedings, your role as litigation friend comes to an end. Normally in practice, this would happen by you or them making an application to the Court and providing the Court with medical evidence that they have regained capacity.

The Court can also make an order removing someone as litigation friend. This might happen if for example, the court believes there is a conflict of interest between them and the protected party or they are not able to act fairly or competently. It also might happen for example if you no longer want to be the protected party’s litigation friend.

What about costs?

You may have a potential costs liability if you agree to act as someone’s litigation friend and so it is important to be aware of this and seek legal advice if you are thinking of acting as someone’s litigation friend.

If the protected party is bringing the case against their opponent i.e. they are the Claimant, then when agreeing to act as litigation friend you have to give an undertaking that you will pay any costs that the protected party is ordered to pay in relation to proceedings. This is subject to your right to be repaid from the protected party’s own assets. The general rule is that an unsuccessful party will be ordered to pay the costs of the successful party and so where a protected party loses their case, they will be ordered to pay their opponent’s costs.  If the protected party has a legal aid certificate in place, then even if a costs order is made against them, the costs order may not be enforced against them without leave of the court and where they have no means to pay the costs, the court would not make such an order. Therefore, generally there would be a low risk in you having to pay anything towards the costs of the case in those circumstances.

If the protected party is defending the case against their opponent i.e. they are the Defendant, then you do not have to give an undertaking to pay any costs that the protected party is ordered to pay in relation to proceedings. It is however still possible for the Court to make an order that you have to pay costs of the proceedings depending on the specific facts of the case, but relevant factors might include bad faith, improper or reasonable behaviour, or the prospect of personal benefit. Again, if the protected party has a legal aid certificate in place, then this is unlikely. If you have an enquiry about being or requiring a litigation friend in a civil court case (such as housing, community care or dispute resolution) please contact us on 020 3440 8000 or enquiries@tvedwards.com.