Procedure for appointing Litigation Friends for individuals who lack capacity

In civil litigation, where a party lacks capacity under the Mental Capacity Act 2005 to conduct proceedings (as defined in Rule 21.1(2)(d) of the Civil Procedure Rules as a “protected party”), the appointment of a litigation friend is essential to ensure procedural fairness and that the protected party’s best interests are always represented.  Minor children (under 18) also require a litigation friend to act for them in civil litigation, but that will not be covered in this article – albeit much of the practical and procedural considerations where minor children are involved are the same as those outlined below.

This article outlines the practical and procedural considerations for appointing—and terminating—a litigation friend for a protected party.

When to consider appointing a Litigation Friend

The appointment of a Litigation Friend should be considered as early as possible if it appears that a person who wishes to bring a claim or is served with a claim may lack capacity to do so.

A person is presumed to have the capacity to litigate unless there is evidence to the contrary. The person should be encouraged to voluntarily obtain an assessment of their capacity to conduct proceedings from an appropriately qualified person.

If the person does not have a deputy in place and they lack the capacity to consent to an assessment of their capacity, refuse an assessment, or if they already have a deputy to manage their property and financial affairs, then an application should be made to the Court of Protection by the proposed litigation friend or existing deputy.

It is possible for a person to have capacity to manage their property and financial affairs, and thus not require a deputy, but lack capacity to conduct proceedings on their own behalf and thus require a litigation friend.

Appointment Without a Court Order

Under CPR 21.3(2), any willing person with capacity may act as a litigation friend for a protected party without a court order if they file a certificate of suitability confirming:

• The party lacks capacity to conduct the proceedings.
• The proposed litigation friend can fairly and competently conduct proceedings.
• There is no conflict of interest.

The certificate must be:

• Completed and signed by the proposed litigation friend.
• Served on the protected party (or their deputy, attorney, or carer).
• Accompanied by a certificate of service confirming that service has been effected.

If the applicant is the protected party’s deputy appointed by the Court of Protection and authorised by the Court of Protection to litigate on behalf of the protected party, they may instead file a copy of the deputyship order with the claim form.

If the protected party is a claimant, the certificate or deputyship order should be filed and served at the same time as the claim form.

For protected parties who are defendants, it must be filed as soon as practicable after service of the claim on them. If a protected party is defendant to a claim, the certificate of suitability or deputyship order must be filed as soon as possible after service of the claim.

Appointment by Court Order

Where there is a dispute over the suitability of a litigation friend, the court may appoint a litigation friend under CPR 21.5.

This is typically made by application to the court with supporting evidence as to the protected party’s lack of capacity and the proposed litigation friend’s suitability, but the court may also act of its own initiative under CPR 21.6. This can happen if it becomes apparent to the court during proceedings that a party lacks capacity and may require a litigation friend.

If no suitable litigation friends can be found, the court may invite the Official Solicitor to act as the protected party’s litigation friend.

For the Official Solicitor to agree to act, they typically also require confirmation that all other options for prospective litigation friends have been exhausted, and funding is available for legal representation (either through Legal Aid Agency funding or some other means), as the Official Solicitor is unable to pay protected parties’ legal costs from their own funds.

Termination of a Litigation Friend’s Appointment

The appointment of a litigation friend does not continue indefinitely. Termination can occur in several ways:

1. Restoration of Capacity

If the protected party regains capacity, the litigation friend must cease acting. This typically requires:

• Medical evidence confirming restored capacity.
• An application to the court under CPR 21.7 to discharge the litigation friend’s appointment.

2. Court Order

The court may remove a litigation friend on application or of its own motion if:

• The litigation friend is no longer acting in the protected party’s best interests.
• There is a conflict of interest or other disqualifying factor.
• The litigation friend wishes to withdraw and no replacement has yet been appointed.

3. Substitution

A new litigation friend may be appointed in place of another, either by filing a fresh certificate of suitability or by court order, depending on the circumstances surrounding the substitution.

What if a Litigation Friend is not appointed?

Failure to identify capacity issues before proceedings are issued can cause proceedings to grind to a halt, or worse, invalidate any steps taken in those proceedings against the protected party.

Therefore, claimants and defendants should take steps to investigate and identify potential capacity concerns involving their opponents at the earliest possible stage.  This naturally also extends to legal representatives with concerns about their own clients’ capacity, as legal representatives have additional professional duties to ensure that their clients have capacity to provide instructions.

Conclusion

If you are bringing or defending a claim involving a person whose capacity to litigate is in doubt, you must act promptly by seeking appropriate legal advice.

Equally, if you are a deputy for someone who lacks capacity to manage their property and financial affairs and who becomes involved on either side of litigation, you should not assume that no further action is needed.

In either scenario, it is essential to investigate any capacity issues as thoroughly and as early as possible and consider whether a litigation friend is required.

Anthony Gold Solicitors’ Civil Litigation and Court of Protection departments are highly experienced in identifying areas of potential concern regarding litigation capacity and can ensure that the proper procedure is followed.

For expert advice, contact Anthony Gold Solicitors at 020 7940 4000 or mail@anthonygold.co.uk.

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.