Kerry Underwood

LITIGATION FRIEND APPOINTMENT BY COURT

with one comment


In Keays v Executors of the Late Parkinson [2018] EWHC 1006 (Ch) (8 May 2018)

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 and 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 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.

 

CPR 21.4 (3) provides:

 

‘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.’

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:

 

“(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 (18 April 2016) and adopted the remarks made by the judge in that case

 

137:

 

“(1)        As noted above, 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 here is directed towards the conduct and outcome of the litigation for which the individual is to be appointed as litigation friend, and it will in most cases 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.

(2)          Moreover, what this prohibition is directed towards is an interest that is “adverse” to that of the protected party. It follows that the fact that the person appointed as litigation friend has his own independent interest or reasons for wishing the litigation to be pursued ought not, in general, to be a sufficient reason for impeaching that appointment. 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.

(3)          However, it is necessary in this context to have regard to the decision of the Court of Appeal in Nottingham CC v Bottomley and another [2010] EWCA Civ 756, the only authority on this issue to which I was referred. In dealing with the position of a litigation friend, Stanley Burnton LJ (with whom Rix and Maurice Kay LLJ agreed) 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”, something that might be difficult where, as in that case, 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.

(4).         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 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, and the Master rejected that submission and said that provided the solicitor is otherwise suitable, Sara Keays should be 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:

 

“The suggestion that the overriding objective requires harmonious personal interactions between solicitors acting for opposing parties seems to me to be unrealistic.” (Paragraph 55)

 

Finally the judge had this to say:

 

“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.”

 

 

 

Comment

A useful and interesting analysis of the law relating to litigation friends, and their duties and responsibilities.

In my experience many solicitors fail properly to explain to litigation friends their duties and responsibilities and liabilities and treat the appointment of a litigation friend as almost a formality.

It most definitely is not.

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Written by kerryunderwood

June 4, 2018 at 8:37 am

Posted in Uncategorized

One Response

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  1. Reblogged this on | truthaholics and commented:
    “A useful and interesting analysis of the law relating to litigation friends, and their duties and responsibilities.
    In my experience many solicitors fail properly to explain to litigation friends their duties and responsibilities and liabilities and treat the appointment of a litigation friend as almost a formality.
    It most definitely is not.”

    truthaholics

    June 5, 2018 at 1:39 am


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