Kerry Underwood

LITIGATION FRIEND’S DUTIES AND COURT’S POWER TO END APPOINTMENT

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

In

Raqeeb, R (On the Application Of) v Begum & Anor [2019] EWHC 2976 (Admin)

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.

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 (1889) 22 QB 577.

A litigation friend must take legal advice, but must also be able to exercise some independent judgment on that advice – Nottinghamshire CC v Bottomley [2010] EWCA Civ 756.

Written by kerryunderwood

November 21, 2019 at 7:11 am

Posted in Uncategorized

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