Where children or protected parties (adults who do not have capacity to make decisions for themselves) are involved in court cases there is a requirement that a litigation friend is appointed to make decisions for them.
The litigation friend is usually a family member, and once appointed acts as the party’s statutory agent in the litigation. The litigation friend is entitled to take all decisions (subject where necessary to the court’s approval) on behalf of the protected party that concerns the litigation process, but has no authority outside of this. The litigation friend must act fairly and competently and must not have any interest adverse to that of the protected party.
The guidelines surrounding litigation friends can be found in the Civil Procedure Rules. We recommend that you discuss your situation and how these rules apply to you with a solicitor.
Becoming a litigation friend
To become a litigation friend, you can either make an application to the court using the N235 form, or have the court order the appointment. The N235 form includes a statement of consent to act. In the case of a protected party the statement must include the grounds of his/her belief and, if his/her belief is based upon medical opinion or the opinion of another suitably qualified expert, attaching any relevant document to the certificate. The court has the power to appoint litigation friends, prevent a party from being a litigation friend, or to terminate an appointment and appoint a new litigation friend.
The litigation friend must confirm that they can fairly and competently conduct proceedings on behalf of the child or protected party, and have no conflict of interest with the child or protected party. Additionally, where the child or protected party is a claimant, the litigation friend must pay any costs in relation to the proceedings, although these costs may be subject to repayment.
If you choose to be a litigation friend you must ‘direct the proceedings’ on behalf of the protected party. This means you will be required to:
- Make decisions in their best interests
- Do everything you can to communicate to them what is happening in the case and find out their wishes and feelings
- Talk to their solicitor about what is happening
- Get advice from them and give instructions to them in the protected party’s best interests
- Pay any costs ordered by the court
As a litigation friend, you are liable for any costs orders made against the protected party, although you have the right to claim these costs back from the protected party you are acting for. A litigation friend should always be mindful of the total costs they could be liable for and whether the protected party has sufficient funds to cover those costs should they arise. In all circumstances, the litigation friend must support a claim for payment out in relation to costs or expenses by filing a witness statement setting out the nature and amount of the costs, and the reason the costs or expenses were incurred.
Ending the appointment
If the protected party regains capacity then the appointment comes to an end. An application must be made to the court on that basis requesting an order that the appointment has terminated. Such application will need to be supported with evidence. The liability for costs continues until the appointment ends.
The Civil Procedure Rules does not set out the procedure on death of a protected party, in terms of the litigation friend, however the common law position is that if the protected party passes away then the appointment of the litigation friend terminates.