By definition, children are far less likely to be involved in litigation outside the field of personal injury as they cannot enter into contracts, except for necessities, during their minority, and thus the vast majority of cases in which a litigation friend is appointed for a child is in the field of personal injury.
Protected parties are very different; while some clients have lost capacity due to injury, resulting in a personal injury case, very many other examples of litigation friends for protected parties are in the general field of civil litigation, rather than personal injury.
In the last two years, there have been three significant cases involving the court’s powers in relation to litigation friends outside the field of personal injury. This blog post (Part 1) looks at the first of those cases (Hinduja v Hinduja and others), which considers the role and duties of litigation friends, and conflicts arising between a litigation friend and a protected party. A forthcoming blog post (Part 2) will examine cases considering issues including the court’s power to appoint a litigation friend, and its power to terminate the appointment of a litigation friend.
The role of a litigation friend, and conflicts between a litigation friend and protected party
In Hinduja, the Chancery Division of the High Court considered in detail the role of litigation friends, including their duties and the issue of when a conflict may arise between a litigation friend and a protected party. The court also considered the requirement to file a certificate of suitability under CPR 21.5, and the necessary steps under CPR 21.3(4) to cure such a failure so as to give effect to all steps taken in the proceedings prior to the filing of the certificates.
The judgment analyses CPR 21 in detail; all lawyers who frequently act for children or protected parties need to be very familiar with this rule, which is not always the case in my experience. The court has the power to allow a child to litigate without a litigation friend; there is no such power in relation to a protected party (CPR 21.2(1)). Any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise (CPR 21.3(4)). CPR 21.4 reads:
“(1) This rule does not apply if the court has appointed a person to be a litigation friend.
(2) A deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected party’s behalf is entitled to be the litigation friend of the protected party in any proceedings to which his power extends.
(3) If nobody has been appointed by the court or, in the case of a protected party, has been appointed as a deputy as set out in paragraph (2), a person may act as a litigation friend if he –
(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) has no interest adverse to that of the child or protected party; and
(c) where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.”
CPR 21.5 and CPR 21.6 are dealt with at paragraphs 17 to 19 of the judgment. At paragraph 17, the court noted that CPR 21.5 sets out the procedure for a person to become a litigation friend without a court order. CPR 21.5(1) provides that if the court has not appointed a litigation friend, a person who wishes to act as a litigation friend must follow the procedure set out in this rule. Where no deputy has been appointed by the Court of Protection with authority to conduct proceedings, the procedure is governed by CPR 21.5(3), which provides that (where the protected person is the claimant) the person must file a certificate of suitability “at the time when the claim is made”. CPR 21.5(4) deals with service, notably not requiring service on the other parties, but rather on someone acting for the protected party, such as a donee under a lasting power of attorney (see CPR 6.13).
At paragraph 18, the court considered CPR 21.6, which provides that the court may make an order appointing a litigation friend. An application may be made either by the person who wishes to be the litigation friend or by a party. The application must be supported by evidence. The court may not appoint a litigation friend under CPR 21.6 unless it is satisfied that the person to be appointed satisfies the conditions in CPR 21.4(3). CPR 21.8 requires that any application under CPR 21.6 is to be served in accordance with CPR 6.13.
At paragraph 19, the court noted that further detail about applications under CPR 21.6 is provided at Practice Direction 21.3, which requires any application to be made in accordance with CPR 23. It also requires that the supporting evidence must satisfy the court that the litigation friend not only consents to act, but meets the requirements set out in CPR 21.4(3). Again, the court flagged that it was worth noting the position regarding service. Service on other parties to the litigation (in this case, the defendants) was not automatically required. As pointed out by Wilson LJ in Folks v Faizey at paragraph 30, the respondent on whom an application under CPR 23 must be served is the person “against whom the order is sought”. Others are served only if the court so directs.
In relation to defendants, a litigation friend need only be appointed once a step is taken in the proceedings on the defendant’s behalf.
The court also considered the issue of mental capacity in relation to legal proceedings, and in particular the leading Court of Appeal decision in Masterman-Lister v Brutton, where the court said that the key question is whether the party is capable of understanding, with the proper explanation from legal advisers and other experts as the case may require, the issues on which his or her consent or decisions are likely to be necessary: that is, does he or she have the “capacity to understand that which he [or she] needs to understand in order to pursue or defend a claim”?
Generally, the issue of capacity is to be decided by the person him or herself, or his or her carers, perhaps with the advice of a solicitor, without the need for enquiry by the court. There is no need for medical evidence. Age itself cannot justify the need for a litigation friend. The fact that the proposed litigation friend is an attorney under a power of attorney is a strong indication that the party trusted that person to act in his or her own best interests, and is relevant to the appointment.
The issue of a litigation friend’s objectivity is dealt with at paragraphs 60 to 62 of the judgment:
At paragraph 60, the court considered that the comments made about objectivity were obviously made in the context of the facts of that case. The key tests to apply were those set out in the rules. In conducting litigation fairly and competently on behalf of a protected party, it was obvious to the court that a litigation friend must acquaint him or herself with the nature of the case and, under proper legal advice, make decisions in the best interests of the protected party. For the court, being “objective” in this context could not mean independent or impartial vis-à-vis both parties to normal adversarial civil litigation:
“The litigation friend is acting on behalf of the protected party. Any objectivity required must relate to the litigation friend’s ability to act in the protected party’s best interests, and in doing so listen to and assess legal advice, and properly weigh up relevant factors in making decisions on the protected party’s behalf.”
The court went on to consider, at paragraph 61, that the requirement not to have an adverse interest was closely linked to the requirement that the litigation friend could fairly and competently conduct the proceedings. Any adverse interest would obviously have risked compromising the litigation friend’s ability to act fairly in the protected party’s best interests, or at least risk giving the appearance of doing so. The court noted the Court of Appeal’s decision in Nottinghamshire County Council v Bottomley, where a litigation friend was removed because she was subject to a conflict of interest as between the local authority who employed her and the child she was representing. The court noted, in relation to Nottinghamshire County Council, that:
“Stanley Burnton LJ made the point at  that a litigation friend must be able to exercise some independent judgment on the advice received, and it would be unfair to expect the litigation friend to choose a form of settlement most unfavourable to her employer. He also said that the principle that justice must be seen to be done requires the litigation friend not to be seen as having a conflict.”
Finally, at paragraph 62 of the Hinduja judgment, the court reflected that whether the existence of a financial interest on the part of the litigation friend should debar them from acting would depend on the nature of the interest, and whether it was in fact adverse or whether it otherwise prevented the litigation friend from conducting the proceedings fairly and competently on the protected party’s behalf:
“A person is not prevented from being a litigation friend simply because they have a personal interest in the proceedings. It would, for example, be relevant if any personal interest that the litigation friend had meant that he or she could not approach the litigation in a balanced way, in the sense of not being able to weigh up legal advice and decide what should be done in the protected party’s best interests. But it would be highly unlikely that a litigation friend would be unable to do so simply because he or she has an interest in the proceedings, in circumstances where that interest is aligned with that of the protected party.”
On the facts here, the court cured the defect of the late filing of the certificate of suitability, holding that the claimant lacked capacity and that the proposed litigation friend was suitable.
This is a very helpful decision which analyses the Civil Procedure Rules and case law in this area in detail.
It is clear, from the enquiries that I get, that many solicitors treat the appointment of a litigation friend as pretty much a formality, without considering in detail the suitability or otherwise of the litigation friend, and without advising the litigation friend, again in detail, as to their responsibilities, obligations and considerable liabilities.