Kerry Underwood

LITIGATION FRIENDS: DUTIES AND PROCEDURE

with 4 comments


This piece, in slightly different form, first appeared on the Practical Law Dispute Resolution Blog.

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.

As will be seen below the issue of Litigation Friends is dealt with in CPR 21 and covers children and protected parties.

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.

In

Hinduja v Hinduja & Ors [2020] EWHC 1533 (Ch)

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 case also looks at 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 here:

 

“17. CPR 21.5 sets out the procedure for a person to become a litigation friend without a court order. Paragraph (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 paragraph (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”. Paragraph (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).

18. CPR 21.6 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, and 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 any application under CPR 21.6 to be served in accordance with CPR 6.13.

19. Further detail about applications under CPR 21.6 is provided by paragraph 3 of Practice Direction 21, which requires any application to be made in accordance with Part 23, and that the evidence in support must satisfy the court that the litigation friend not only consents to act but meets the requirements set out in CPR 21.4(3). It is again worth noting the position regarding service. Service on other parties to the litigation (in this case, the Defendants) is not automatically required. As pointed out by Wilson LJ in Folks v Faizey [2006] CP Rep 30 at [30], the “respondent” on whom an application under Part 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 [2003] 1 WLR 1511

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: does s/he have the “capacity to understand that which he 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, 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.

 

“60. The comments made about objectivity were obviously made in the context of the facts of that case. The key tests to apply are those set out in the rules. In conducting litigation fairly and competently on behalf of a protected party, it is obvious that a litigation friend must acquaint him or herself with the nature of the case and, under proper legal advice, make decisions in the protected party’s best interests. Being “objective” in this context cannot 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.

61. The requirement not to have an adverse interest is closely linked to the requirement that the litigation friend can fairly and competently conduct the proceedings. Any adverse interest would obviously risk 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. For example, in Nottinghamshire County Council v Bottomley [2010] EWCA Civ 756a litigation friend who was subject to a conflict of interest as between the local authority who employed her and the child she was representing was removed. Stanley Burnton LJ made the point at [19] 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.

62. Whether the existence of a financial interest on the part of the litigation friend should debar them from acting will depend on the nature of the interest, and whether it is in fact adverse or whether it otherwise prevents the litigation friend 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.

 

Comment

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 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.

 

Court’s Power To End Appointment of Litigation Friend

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.

 

Appointment of Litigation Friend by Court

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.

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.”

Written by kerryunderwood

August 3, 2020 at 8:31 am

Posted in Uncategorized

4 Responses

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  1. Kerry
    What is the position where an infant is injured negligently and then dies 1 year later.There is a bereavement claim but also a claim by the estate of the infant for damages for injuries and the funeral account.Also a care claim by the parents.In what capacity do the parents claim?I presume it will not be possible to take out a Grant since the child was under 18 years of age.

    john

    August 12, 2020 at 11:50 am

    • John

      As far as I am concerned, but I am not an expert in probate, a Letter of Administration can be taken out in relation to a minor who has died intestate, just like anyone else and the parents would be the obvious Administrators.

      My instinct is that the care claim is actually the claim of the deceased infant, just as it would be for, say, and adult who was alive; that is the carer would not bring a separate claim in their own name, but rather it is an expense of the injured person.

      Kerry

      kerryunderwood

      August 13, 2020 at 10:13 am

      • Thanks Kerry.

        John

        August 13, 2020 at 10:37 am

  2. Pleasure

    kerryunderwood

    August 13, 2020 at 10:38 am


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