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Litigation friends: duties and procedure (Part 2)

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.

My previous blog post considered the first of those cases, which dealt with issues including the role and duties of litigation friends, and conflicts arising between a litigation friend and a protected party. This blog post (Part 2) examines the next two cases, which consider issues including the court’s power to appoint a litigation friend, and its power to terminate the appointment of a litigation friend.

Court’s power to end appointment of litigation friend

In Raqeeb, R (On the application of) v Begum and another, the Administrative Court dismissed an application by Barts Health NHS Trust to terminate the appointment of a litigation friend acting for a child in judicial review proceedings concerning the provision of life-sustaining treatment for the child. The court reviewed the duties of a litigation friend under CPR 21, and the court’s discretion under CPR 21.7 to terminate a litigation friend’s appointment.

The child, acting through her court-appointed litigation friend, a family member, brought a judicial review challenge against a refusal by the defendant hospital trust to permit the child to be transferred to a hospital in Italy for continued life-sustaining treatment.

During those proceedings, the defendant hospital trust applied for a determination that withdrawing such treatment was in the child’s best interests. The defendant hospital trust also applied to terminate the court-appointed litigation friend’s appointment as the child’s litigation friend, arguing that the court-appointed litigation friend, owing to her familial love for the child as well as her religious beliefs, lacked the ability to take a balanced and even-handed approach regarding the child’s best interests.

The judge reviewed the authorities and set out the relevant principles:

  • The court has a wide discretion to terminate a litigation friend’s appointment.
  • A litigation friend, including one appointed by the court, must be able fairly and competently to conduct proceedings.
  • This includes acting under proper legal advice, but also being able to exercise some independent judgment on that advice.
  • A litigation friend who does not act on proper advice may be removed.
  • The litigation friend must have no interest adverse to that of the child, but there is no principle that a family member cannot act as a litigation friend, so long as they can take a balanced and even-handed approach to the relevant issues.
  • Religious beliefs of themselves do not disqualify a person from acting as a litigation friend.

Applying these principles, the judge dismissed the defendant hospital trust’s application. The judge found that the defendant hospital trust’s arguments concerning the litigation friend’s religious views were only relevant to the consequences of a potentially successful outcome to the judicial review application, rather than the merits of the underlying application itself. The litigation friend had taken legal advice on those merits from the child’s experienced, specialist legal team, and there was no suggestion by that team that the litigation friend acted inappropriately in the context of that advice or had an improper motive.

Duty and role of a litigation friend

A litigation friend is an officer of the court whose duty is to take all measures for the benefit of the infant in the litigation (Rhodes v Swithenbank).

A litigation friend must take legal advice, but must also be able to exercise some independent judgment on that advice (Nottinghamshire CC v Bottomley).

Appointment of litigation friend by court

In Keays v Executors of the Late Parkinson, a Chancery Division master had a rare opportunity to deal with an application to replace a litigation friend under CPR 21.7.

The case involved Flora Keays, the daughter of the late Cecil Parkinson, the politician, and Flora was represented by her mother, Sara Keays, in a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. It was common ground that Flora lacked capacity to conduct the proceedings herself.

The defendant executors sought to remove Sara Keays as Flora’s litigation friend, on the grounds that she could not fairly and competently conduct proceedings on Flora’s behalf and that she had an interest adverse to Flora’s interest.

Sara Keays did not object in principle to her being removed as litigation friend after the executors had agreed to fund the costs of a suitable litigation friend acting for Flora, and also Flora’s litigation costs. However, there was a dispute over who the replacement should be, and that was the subject matter of this application.

Sara Keays proposed three solicitors, but the executors objected to her preferred choice, and the court considered whether the executors had shown grounds for removing Sara Keays as the litigation friend.

The court rejected the executors’ submission that Sara Keays was not a suitable litigation friend within the meaning of CPR 21.4, and stated that the evidence was that if she could instruct a competent solicitor with relevant expertise, then she would be able fairly and competently to conduct the proceedings. The master stated that a litigation friend had extensive dealings with the parent or the person responsible for the child or protected party, and therefore the court should be reluctant to impose a litigation friend on that person, and should only do so if there is no other viable candidate. The master considered that Sara Keays should be entitled to appoint her preferred solicitor and that the executors’ criticisms of that solicitor were not made out. The master therefore made an order appointing Sara Keays’ preferred choice of a solicitor as Flora’s litigation friend.

The Civil Procedure Rules provide for self-certification by the litigation friend that she satisfies the conditions specified in CPR 21.4(3) (see CPR 21.5), and Sara Keays filed and served such a certificate.

CPR 21.7 deals with the replacement of a litigation friend and provides that:

“(1) The court may –

(a) direct that a person may not act as a litigation friend;

(b) terminate a litigation friend’s appointment; or

(c) appoint a new litigation friend in substitution for an existing one.

(2) An application for an order under paragraph (1) must be supported by evidence.

(3) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions in rule 21.4(3).”

Here the master considered the case of Davila v Davila and adopted the remarks made by the judge in that case. As in Davila, the master noted that CPR 21.4(3)(b) stipulates that in order for a person to act as a litigation friend, that person must have no interest adverse to that of the protected party. The relevant inquiry was directed towards the conduct and outcome of the litigation for which the individual was to be appointed as litigation friend. In most cases, it will not be relevant to search, outside the bounds of the particular litigation, for some factor that might suggest some potential conflict between the interests of the party and the interests of the litigation friend, unless it can reasonably be said that this potential conflict may also affect the manner in which the litigation friend is likely to approach the conduct of the litigation itself.

The master further noted that, in Davila, what the prohibition was directed towards was an interest that was “adverse” to that of the protected party. In that case, it followed that the fact that the person appointed as litigation friend had their own independent interest or reasons for wishing the litigation to be pursued should not, in general, have been a sufficient reason for impeaching that appointment. Per the court in Davila: “Such an interest would, at least in general, run in the same direction as the protected party rather than being adverse to the protected party’s interests.”

In Davila, it was however necessary in this context to have regard to the decision of the Court of Appeal in Nottinghamshire CC v Bottomley and another, which was the only authority on this issue to which the judge in Davila was referred. In Nottinghamshire CC, Burnton LJ, (with whome Rix and Maurice Kay LLJ agreed), in dealing with the position of a litigation friend, emphasised the need for the litigation friend to “seek the best outcome” for the protected party and for a litigation friend to:

“… be able to exercise some independent judgment on the advice she receives from those acting for a claimant, and… be expected to accept all the advice she is given”.

The judge in Davila noted that this was something that might be difficult where, as in Nottinghamshire CC, the litigation friend worked for an organisation that would benefit from a settlement in a form that might not necessarily be to the benefit of the protected party itself.

The court in Davila conculded that:

“This highlights the fact that, even where the interests of the protected party and litigation friend generally run in parallel or coincide, this does not of itself preclude the possibility that, in some contexts, those interests might diverge and become adverse. Whether or not that is so will, of course, always depend upon the facts of the particular case.”

The court in Keays rejected the executors’ submissions and allowed the appointment of the solicitor preferred by Sara Keays.

Bizarrely, the executors themselves sought the appointment of a solicitor proposed by them, which, in a masterful understatement, the master referred to as “an unusual application”. The barrister for the executors submitted that it was perverse for Sara Keays to insist upon a solicitor to whom the executors object. The master rejected that submission and said that, provided the solicitor was otherwise suitable, Sara Keays should have been entitled to choose the solicitor that she wanted.

The executors’ objection to the preferred solicitor was that she had taken an obstructive and unreasonable approach to settlement discussions in the claim and was likely to do so again, and that her costs were too high. In other words, the primary objection was that the solicitor would do her job in representing Flora Keays, a protected party. The master was unimpressed, stating (at paragraph 55) that “[t]he suggestion that the overriding objective requires harmonious personal interactions between solicitors acting for opposing parties seems to me to be unrealistic.”

Finally, the judge had this to say (at paragraph 57):

“Finally, I mention that although the executors in their capacity as such have no interest in the outcome of the claim, they have not taken a neutral position reflecting that absence of interest. Instead, they have actively defended the claim. This has included making the current application. The executors’ counsel informed the court that the stance taken by the executors was supported by the beneficiaries. This is not desirable because costs attributable to the executors’ role in the claim in their capacity as such ought to be clearly distinguishable from costs incurred in opposing the claim: see CPR PD 46, para 1.”

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