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What is a litigation friend and what does the role involve?

A “litigation friend” can be required in two circumstances. If a party in legal proceedings (for example, the person bringing a claim) is under 18 years old, a litigation friend must be appointed to act on their behalf unless the court orders otherwise.

If a party to proceedings is deemed to lack mental capacity to conduct the proceedings independently, they are considered to be a “protected party” and they too must have a litigation friend to conduct the proceedings on their behalf. These requirements apply regardless of whether the party in question is represented by a solicitor.

Anyone can act as a litigation friend to a child or protected party, provided that the court is satisfied that they are suitable. In order to be suitable, a litigation friend has to confirm that they will act fairly and competently on the party’s behalf, that they have no interest which conflicts with that of the party and that they undertake to pay any costs which the party may be ordered by the court to pay in relation to the proceedings. When considering whether you are suitable to be someone’s litigation friend, you must give careful consideration to whether a “conflict of interest” exists or may arise at some point in the future, be it by virtue of the nature of your relationship or from the circumstances which have given rise to the proceedings. A potential conflict of interest would impact your ability to act in the person’s best interests or at the very least would cast doubt over your ability to act in the person’s best interests. It is for the court to determine whether or not someone is suitable to act as a litigation friend.

A litigation friend can be appointed by an order of the court or from the outset of the proceedings, if the litigation friend files a court document called a “certificate of suitability”. Generally speaking, a litigation friend is likely to be a friend or family member of the party but, in the event that there is no one suitable, the Official Solicitor (“the litigation friend of last resort”) can undertake this role.

The question of what constitutes “mental capacity” is set out in the Mental Capacity Act 2005. It must be borne in mind that the presumption is in favour of someone having capacity, i.e. a person must be deemed to have capacity unless it is established that they do not. It is prudent to obtain evidence from the outset, for example, a report from the party’s GP, confirming that a person lacks the capacity to conduct the proceedings independently. The court must be satisfied that it is “more likely than not” that the person lacks the ability to make decisions in relation to the court proceedings.

Capacity is decision-specific and so a person may have the ability to make some day-to-day decisions, but for there to still be concerns as to their ability to make decisions about a court case. Equally, someone should not be assumed to lack litigation capacity simply because they do not have the ability to make decisions independently in relation to other unrelated matters or, for example, if they have a learning disability. For the purposes of determining whether or not a person requires the assistance of a litigation friend, consideration must be given to whether they can understand and retain information, and then weight it up in order to make and communicate an informed decision in relation to the proceedings in question.

If you are acting as a litigation friend to a child who then turns 18, or to a protected party who gains or regains capacity, you have to apply to the court for your involvement to come to an end. The court may also replace a litigation friend if they do not consider that they are acting in the person’s best interest.

If you consider that someone close to you who is involved in or may become involved in legal proceedings might require a litigation friend, or if you are considering putting yourself forward to act as someone’s litigation friend, it is advisable to speak to a solicitor to ensure that you understand the criteria, obligations and procedure involved.

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