Who should be a Litigation Friend?

A Litigation Friend is a person or body corporate that represents a minor or person that lacks capacity to represent themselves in legal proceedings. It is a different role to that of an Attorney or Deputy, although there is often crossover. The appointment of a Litigation Friend must be confirmed by the Court that the proceedings are within.

The Civil Procedure Rules (CPR) set out very clear when a person may be suitable to act as a Litigation Friend. Under CPR 21.4, a person may act as a Litigation Friend if they –

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

(b) have no interest adverse to that of the child or protected party; and

(c) where the child or protected party is a claimant, 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.

Additionally, if acting in proceedings in the Court of Protection, the Litigation Friend must confirm that they will act in the Protected Party’s best interests  AB v LCC (A Local Authority) [2011] EWCOP 3151.

There has been a number of judicial decisions in the Court about each of these areas, and the key case law is considered below.

Fairly and competently conduct proceedings

In the matter of Hinduja v Hinduja & Ors [2020] EWHC 1533 (Ch), the Court examined the role of Litigation Friend in great detail. Specifically, the issue of whether a Litigation Friend was required to be objective in order for them to be able to fairly and competently conduct proceedings was examined. The Court confirmed that Mr Hinduja’s daughter could represent her father in proceedings regarding his business affairs, and stated that the requirement for objectivity should not be confused with impartiality.

‘Being “objective” in this context cannot mean independent or impartial’.

‘SP’s litigation friend will not, and indeed cannot, be impartial: he or she is conducting adversarial proceedings on behalf of the protected party. What is required is that the litigation friend acts in the protected party’s best interests.’

‘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.’

Provided that the Litigation Friend is able to objectively act in the Protected Party’s best interests, listen to and weigh up legal advice and the relevant factors in the case, then they are not precluded from being a Litigation Friend because they have an interest in the outcome of the case.

Have no interest adverse to that of the child or protected party

The first case to consider this requirement in detail was Nottinghamshire County Council v Bottomley & Anor [2010] EWCA Civ 756. In this matter, a social worker sought to represent a child that had been injured at birth in their damages claim. The Court of Appeal expressed significant concerns about whether this would be compliant with the requirement to ‘have no interest adverse to that of the child or protected party’ because the social worker was employed by Nottinghamshire County Council, who would in due course want to charge the child for care that they receive. Therefore, she had an interest adverse to the child’s, and due to her duties to her employer, would struggle to exercise ‘independent judgement’ about the form of award being accepted. Further, it was a principle of our judicial system that justice must not only be done, but be seen to be done, and even if the social worker in fact had no conflict of interests due to her own integrity, she would be perceived as having one, and that would be sufficient to bar her from the role.

In the case of Re NRA &Ors [2015] EWCOP 59, which is a far reaching welfare matter in the Court of Protection, the Court confirmed that ‘it is inevitable that family members or friends will have “an interest” in the outcome of the proceedings because it affects them as well as P’. However, provided that the interests ‘does not give rise to an adverse interest to P and so to a conflict of interests’ then this is not a barrier to the family member or friend becoming Litigation Friend. In fact, the interest can be an advantage in performing such a role as they have ‘fought P’s corner’ over a long time and are best placed to promote P’s interests as they know P best.

Finally, the matter of Hinduja v Hinduja & Ors [2020] EWHC 1533 (Ch) also considered the issue of what constitutes an adverse interests. The Court determined that having a financial interest in the outcome of the proceedings, provided it aligned with the protected party’s, and didn’t necessarily prevent them from acting in the protected party’s best interests, was not found to be a barrier to acting as Litigation Friend.

The Court stated ‘[w]hether 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.’.

Further that even if the Litigation Friend was required in due course to give evidence in her own right that ‘there is no basis to suggest that acting as a witness means that she cannot fairly conduct proceedings on her father’s behalf, or that she has an adverse interest’.

It was a relevant factor that her father had appointed her as his attorney for property and financial affairs, and therefore trusted her to act in his best interests.

In summary, not being impartial and having an interest in the outcome of proceedings are not necessarily barriers to being a Litigation Friend, and may in fact enhance your ability to deeply understand the issues in hand, weigh them up and make decisions in the best interests of the Protected Party. However, each appointment will turn on it’s own facts and legal advice should be sought if a Litigation Friend may be required.

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.