The court’s role where a claimant does not have capacity

How does a court deal with those who require assistance to take (or defend) a claim can present difficulties for clients and lawyers alike. 

These include children and “protected parties” (i.e. adults without the capacity to litigate) who need extra support.

A protected party is simply a party who lacks the mental capacity to conduct proceedings. 

For adults, this is based on medical evidence from usually a GP, psychiatrist, neurologist, or neuropsychologist. 

For them to take a claim forward therefore they must have a “litigation friend” who deals with the case on their behalf. 

Children are deemed to be in essence protected because they lack capacity by reason of age. 

In a judgment relating to the business affairs of the Hinduja family (Hinduja v Hinduja & Ors  [2020] EWHC 1533 (Ch)) Falk J, sitting in the Chancery Division, has undertaken an important analysis of when, precisely, medical evidence is required to support the proposition that a party in civil proceedings requires a litigation friend, as well as the circumstances under which it can properly be said that a person should not be a litigation friend.[1]

The proceedings were brought under Part 8 of the Civil Procedure Rules to determine the validity and effect of two letters.   Through an oversight, however, the Claimant’s advisers did not file a certificate of suitability from the Claimant’s daughter at the time, as required by CPR r. 21.5. Such a certificate was filed, and Falk J had to consider whether and how to regularise the position.   For technical reasons which are immaterial here, she took the view that the better course was to make a fresh order to appoint his daughter, Vinoo, as litigation friend under CPR r.21.6. There were two preconditions to the exercise of that power: (1) that the Claimant, SP, was a protected party and (2) whether Vinoo met the conditions set down in CPR r.21.4(3) to be a litigation friend. Were she to make such an order, Falk J would then make an order regularising the position under CPR 21.3(4) (and the Defendants, whilst challenging the two pre-conditions noted above, did not challenge the making of such an order if they were met).

A litigation friend is someone who helps a “protected person” with their legal issues.  

A protected person is either (i) an adult who cannot manage their own affairs as a result of lacking the necessary mental capacity to make legal decisions about the issue in question; or (ii) a child under the age of 18 years.  The focus of this article is on adults who lack the capacity to conduct court proceedings.

Who can act as a litigation friend?

A litigation friend does not necessarily have to be a lawyer.  Anyone can be a litigation friend as long as they can fulfil their role fairly and competently.  This means that family members, close friends, etc can be appointed. 

In cases where there is no one willing or available to take on this role, the official solicitor can be asked by the Court to step in. The official solicitor is part of the judicial system of England and Wales and if they are appointed, provision will be made for the payment of their costs.

Appointment of a litigation friend

When a claim has been issued, a litigation friend will be appointed to conduct the court proceedings on behalf of the protected person. 

The appointment of a litigation friend is usually done by way of straightforward filing at court.  

The process involves completing a certificate of suitability which basically states that the litigation friend believes the claimant (or the defendant) in the proceedings lacks capacity; they can fairly and competently conduct proceedings; and they consent to act.  

This certificate of suitability is then served on every person on whom the claim form should be served. Once this is done, the certificate of suitability and certificate of service are filed at court. 

Where the protected person has a deputy appointed by the Court of Protection with the specific power to conduct legal proceedings on their behalf, they are entitled to act as litigation friend.  The deputy will be required to file and serve an official copy of the Court of Protection order on the other parties.

In some cases, an application for a court order may be required, such as where a party to the proceedings seeks to have a litigation friend appointed or an existing litigation friend is to be replaced.

Terminating the appointment of a litigation friend

The appointment of a litigation friend will come to an end if the protected party regains or acquires the capacity to conduct proceedings.  An application supported by evidence such as a medical report and a statement by the former protected party will be required. 

In some circumstances, the court may decide to terminate the appointment of a litigation friend or substitute a litigation friend, for example, where there is evidence of a conflict of interest between the protected person and their litigation friend.

What does it mean to be a litigation friend?

A litigation friend takes on a serious role – that of taking all decisions and steps in the legal matter fairly and competently. It is advisable to carefully consider whether this is a role you can commit to.

During the course of the case, the litigation friend may be required to sign legal documents, instruct solicitors and take legal advice, communicate with the protected person if possible, and make key decisions about the case, such as accepting compensation or settling on certain terms.

If a settlement is agreed by the litigation friend, the court’s approval will be required before the matter is finalised, whether court proceedings have been issued or not.  This is to ensure that the settlement reached is in the protected person’s best interests.  This is why it is important for the litigation friend to consider the best interests of the person they are representing when making key decisions.  They should not make decisions about the claim in their own interests.

Costs implications

Where the protected party is a claimant, the litigation friend will give an undertaking to pay any costs which the party they are representing may be ordered to pay in relation to the proceedings, subject to any right they may have to be repaid from the party’s assets.  It is therefore important for the litigation friend to seek legal advice as to the merits of a case before issuing proceedings on behalf of a protected person.

Court of Protection and Litigation Friends

The Court of Protection (COP) is a specialist court set up under the Mental Capacity Act 2005 to assist those who lack the capacity to make decisions for themselves (often referred to as “P”).  The Court of Protection will often make decisions regarding P’s property and affairs (for example, making a will or substantial gifts on P’s behalf) and health and welfare (for example, where P should live, whether they should have contact with certain family members and/or friends, etc).

Since these proceedings inherently involve P, P will often be joined to the proceedings and will require a litigation friend to represent them if they lack the capacity to litigate.  It is important to note that capacity is issue and time specific.  Just because P does not have the capacity to, for example, make a will does not automatically mean that they do not have the capacity to litigate – medical evidence will need to be sought.

If there is evidence that P lacks the capacity to litigate, anyone – such family members, friends, etc who are suitable and willing – can be appointed as P’s litigation friend in the Court of Protection proceedings.  However, this does not often happen – for the simple reason that the same close family members and/or friends of P are often a party to the Court of Protection proceedings and cannot represent P also due to a potential conflict of interest.

As a result, very often, the official solicitor will be invited by the Court of Protection to represent P.  It should be noted that the official solicitor will only accept an appointment to act subject to being given suitable security that the costs incurred by external solicitors will be met from P’s own assets or by way of legal aid.


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