While we mostly associate dementia with the affect it can have on our memory, it can also affect our ability to think and communicate and our capacity to manage our own affairs. When undertaking legal proceedings, as solicitors, we have a duty to ensure that our clients have the mental capacity to give proper instructions to bring, or defend, a claim. Where our client does not have the necessary capacity, a Litigation Friend may be appointed. Below I have looked at some of the questions we are often asked about Litigation Friends and their role in legal proceedings.
What is a Litigation Friend?
In cases where a party is a child or an adult who lacks the mental capacity to make decisions and manage their own Court case (otherwise known as a protected party), a Litigation Friend is appointed to make decisions about the case on their behalf.
Whether someone is a protected party and has the mental capacity to run their own case differs depending on the individual and the decisions to be made. The Mental Capacity Act 2005 defines how capacity is assessed and has been discussed in further detail by my colleagues here.
Who can be a Litigation Friend?
The most important criteria for being a Litigation Friend is that they are suitable for the role. A Litigation Friend is required to certify to the Court that their interests do not conflict with that of the child or protected party and they are able to conduct proceedings fairly and competently. Otherwise, the Court can appoint anyone to be a Litigation Friend, though this is often a parent or guardian, but it can also be a family friend or a professional.
Where there is no one suitable to be a Litigation Friend, the Court may appoint the Official Solicitor as a last resort Litigation Friend, and in some cases as solicitor. The Official Solicitor is a public official, their official title is Official Solicitor to the Senior Courts.
What are the responsibilities of a Litigation Friend?
Being a Litigation Friend is a big undertaking, not only with regards to the time commitment but also the emotional load depending on the type of case. In clinical negligence claims the Litigation Friend may be involved over a number of years.
The Litigation Friend’s primary responsibility is to always act in the best interests of the child or protected party. A Litigation Friend will be the main point of contact for the instructed solicitor and will be making decisions based on the legal advice they receive and the best interests of the child or protected party. A Litigation Friend will also need to explain what is happening in the case, so far as is possible, to the protected party to keep them updated on their case.
A Litigation Friend will be liable to pay any adverse costs ordered by the Court against the child or protected party. A legal expenses insurance policy may be obtained to cover such events.
Just as a Litigation Friend can conduct proceedings on behalf of a child or protected party, they can also compromise the claim and reach settlement on their behalf. However, no compromise, settlement or payment will be valid without the approval of the Court. This is the case whether compromise is reached in the pre-action stage, before proceedings are issued, or whether there are active Court proceedings.
How to become a Litigation Friend?
To be appointed as a Litigation Friend in a civil case you will first need to file a ‘certificate of suitability’. This certifies that you are able to act fairly and competently in conducting proceedings on behalf of the protected party, you have no adverse interest to the party, and (in the case of a claimant) you will undertake to pay any costs which the protected party may be ordered to pay in relation to the proceedings.
A completed copy of the certificate then needs to be served either to the parent or guardian in the case of a child, or to the deputy, attorney or carer in the case of the protected party, as well as to the protected party themselves. When this step has been completed, a ‘certificate of service’ along with the certificate of suitability must be filed with the Court.
When do the duties of a Litigation Friend end?
A Litigation Friend’s role will usually also end when the case ends, this is unless they are acting on behalf of a child who has received a settlement.
A claimant’s capacity to manage their case may also change during the course of proceedings. For example, a child may turn 18 or an adult may recover their mental capacity. In such cases, the Litigation Friend or party will need to serve a statement with the Court advising they are no longer acting as Litigation Friend. In the case of an adult regaining capacity, medical evidence will need to be submitted proving that they have regained capacity.
About the author
Katie is an Associate in the Medical Negligence & Personal Injury team having recently completed her training contract at Kingsley Napley. Katie has experience in litigating a range of cases including birth injuries, ophthalmic injuries, misdiagnosis and fatal accidents.
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