Costs exposure for litigation friends

The Court rules require individuals who do not have litigation capacity (a protected party), or minor children under 18, to have a litigation friend in Court proceedings. Deputies appointed by the Court of Protection or attorneys under an LPA commonly act a litigation friend for the individuals they are already assisting. However, litigation friends are just as often a close family member or friend and can be anybody who can:-

1. a) fairly and competently conduct proceedings on behalf of the child or protected party; and

         (b) has no interest adverse to that of the child or protected party.

The role of a litigation friend is to step into the shoes of the child or protected party and to conduct the Court proceedings on their behalf, in their best interests. In practical terms, this usually means instructing a solicitor, considering their advice and providing instructions so the Court proceedings can be progressed.

This means that a litigation friend will also need to enter into a funding arrangement with their lawyers which can, understandably, be of concern to them.  Particularly as they will usually have no financial interest in the proceedings – they are just assisting somebody else.

A litigation friend’s liability for their own costs will depend on the specific funding arrangement agreed between them and their solicitors, along with any order made by the Court. They might be offered a “no-win no-fee” arrangement, or a parent acting as litigation friend for their child, will likely be happy to pay the solicitor’s fees from their own pocket, in the usual way.

A Deputy or attorney acting as litigation friend can seek authority from the Court of Protection to conduct the proceedings on the protected party’s behalf and to fund it from their assets.

However, even without this authority from the Court of Protection – under the Court rules-   a litigation friend can later apply to recover their legal costs/expenses from any money recovered for the child or protected party in the proceedings, to the extent they have been reasonably incurred and are reasonable in amount, subject to a detailed assessment by the Court.  The Court will then look at all the circumstances of the case before deciding how much the litigation friend can recover.

Of further concern to any proposed litigation friend is their potential liability for “adverse costs” – the other side’s costs.  The usual rule in Court proceedings is that the “loser” pays the “winners” costs.

Any litigation friend acting for a Claimant must undertake “to pay any costs that the claimant is ordered to pay, subject to any right to be repaid from the assets of the child or protected party”, as a requirement for their appointment, so can be ordered to pay adverse costs.

Any litigation friend acting for a Defendant is not required to provide such an undertaking,  but the Court still has the power to order them to pay adverse costs if it is considered appropriate.  The case law suggests that the Court will not usually make such an order against a litigation friend (acting for a Defendant) unless “it is just in all the circumstances of the case to make the Order”;  for reasons such as unreasonable conduct or the prospect of personal gain.

Conclusion

Accepting the role of litigation friend is a serious responsibility which should not be taken lightly. However, without a litigation friend in place, Court proceedings cannot be progressed on behalf of the most vulnerable individuals in society.

Any proposed litigation friend should seek advice on their liability for their own costs and any potential “adverse costs”, before accepting their appointment.

If you want advice on any of these issues, please do not hesitate to contact a member of our contentious probate team.

Upcoming seminar: Deputies and attorneys in civil litigation

Don’t miss our upcoming seminar Deputies and attorneys in civil litigation on 09 October from 18:30. Hear from our leading Court of Protection and Contentious Probate practitioners as they share practical insight and real-world examples, followed by a networking reception. Register now to secure your place.