What is a litigation friend?
The Court of Protection makes decisions about individuals who lack capacity to do so themselves. More often than not, the person who is the subject of proceedings “P” will also lack capacity to conduct the litigation. Where P or any other party to the proceedings lacks capacity to conduct the relevant litigation, a litigation friend must act on behalf of P.
The litigation friend conducts proceedings on behalf P, including instructing a solicitor to represent P. Until P has a litigation friend to conduct litigation on his behalf, the proceedings should not go ahead. Often the Official Solicitor will be invited to act as P’s litigation friend.
Who is the Official Solicitor?
The Official Solicitor is an independent office holder appointed by the Lord Chancellor and often acts as litigation friend to those who lack capacity. The Official Solicitor is however the litigation friend of last resort and will generally only accept cases where there is no one else suitable and willing to act as litigation friend to P. The Official Solicitor has limited resources and there is usually a significant delay before he is able to act. This can mean that important decisions that the court will take about P’s life are delayed.
Consideration should always be given to whether there are might be anyone else willing and suitable to act as P’s litigation friend. This could be a family member, a friend or sometimes P’s advocate. If there is an application before the court for someone to be appointed litigation friend, the Official Solicitor will not even consider an invitation to act until that application has been decided.
Who else can act as litigation friend?
Anyone can act as litigation friend if they:
- Can fairly and competently conduct proceedings on behalf of P;
- Have no interests adverse to P; and
- Can act in P’s best interests.
The court will decide whether a person meets the criteria for appointment as litigation friend. The judgement in a recently reported case on which we were instructed, WCC v AB and SB  COPLR 157, confirms that family members may well make suitable litigation friends. If there is someone other than the Official Solicitor who can be P’s litigation friend, it will enable cases to get going more quickly.
What happened in WCC v AB and SB?
We were instructed by AB’s aunt in a general welfare application made by the relevant local authority. The Official Solicitor had twice been invited twice to act as AB’s litigation friend to no avail. In December 2011 the Official Solicitor wrote to the President of the Court of Protection to say that the Official Solicitor had reached the limit of his resources in terms of availability of staff to be able to take on health and welfare cases and would be unable to accept invitations to act except in urgent cases – such as serious medical treatment cases.
AB’s aunt was concerned about the continued delay and the impact it was having on her nephew’s case. We advised and represented her on an application to be appointed AB’s litigation friend. After a lengthy hearing, during which the responsible local authority raised various objections to our client’s appointment, HHJ Cardinal appointed AB’s aunt as his litigation friend.
Interestingly, the judgement of HHJ Cardinal in the case referred to the commentary to Rule 140 of the Court of Protection Rules in Jordan’s Court of Protection Practice 2012, saying that it might be “a little excessive” in that it states that a relative or concerned person is likely to have a conflict of interest if appointed as P’s litigation friend. We expect the commentary will be updated in the next edition to reflect this recent judgement.
This is a clear endorsement of family members acting as litigation friend even where there is the possibility that this may bring them into conflict with another family member, as long as the court is satisfied that they are able to act in the best interest of P.
The fine detail
The test for appointment of a litigation friend is laid out in rule 140 of the Court of Protection Rules 2007 and the process is set out in rule 143.
Rule 140 states that:
(1) A person may act as a litigation friend on behalf of a person mentioned in paragraph (2) if he-
(a) Can fairly and competently conduct proceedings on behalf of that person; and
(b) Has no interests adverse to those of that person
(2) The persons for whom a litigation friend may act are-
(b) A child; or
(c) A protected party.
The court may not appoint a litigation friend unless it is satisfied that the person to be appointed satisfies the conditions specified in rule 140(1).
The only relevant test is whether the proposed litigation friend can fairly and competently conduct proceedings and has no interests adverse to P.
Finding an alternative to the Official Solicitor as litigation friend can avoid delay in cases which is to P’s benefit. The role of litigation friend is onerous and the litigation friend will have various rights, duties and potential liabilities. It is important to take legal advice before deciding to act as a litigation friend.
Cartwright King Solicitors
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to cartwright king directly.