Once a litigation friend – not always a litigation friend

May 26, 2021

Gerard Martin QC

In the last few weeks I have had a contested hearing (remotely) before HHJ Godsmark QC in Nottingham to remove from a protected party’s case his litigation friend on the ground that she, his sister, was incapable of acting fairly and competently within the meaning of CPR 21.4 (3) (a). The hearing and the application raised interesting issues.

The Claimant had received a severe brain injury as a pedestrian in an RTA, now lacked capacity and only spoke a little English, a feature shared with his sister. We had reached the stage of agreeing a liability compromise at a jsm – 75/25 in our favour, only for the litigation friend thereafter within about two weeks to renege on the agreement, on the basis she wanted to see all the correspondence in the case (which she had seen already) because as she said in evidence “she felt something was amiss”, failing the provision of all documentation her instructions were to fight the liability trial.

The removal hearing was conducted with the benefit of a translator, the litigation friend appeared unrepresented, the Defendant’s counsel was initially present as we had listed a liability approval hearing at the same time as the removal application, but was requested to “wait in the lobby” whilst we dealt with the removal application.

The first question I was asked by the judge was who did I represent, he making the point that until he made his decision, the claimant was represented by the litigation friend. The answer was I was making the application on behalf of my instructing solicitor who was under a duty to the protected party to bring to the court’s attention any concerns about the fitness of the litigation friend to carry out that office – see the observations of  Brightman J in In re Whittle 1973 1 WLR 1027.

I was then asked by the judge did I support the application, the judge having pre-read the bundle knew I was counsel for the claimant at the jsm, the answer was obvious, but the question was asked for the benefit of the litigation friend.

I did support the application. The relevant law as to the test to be applied as to the meaning of “fairly and competently” can be found in two recent cases Hinduja v Hinduja 2020 EWHC 1533 Ch., and R (Raqeeb) v Barts Health NHS Trust 2019 EWHC 2976 (Admin). In the latter case Macdonald J stated at para 20 that “in fairly and competently conducting proceedings, the litigation friend is required to act for the benefit of the child and to safeguard his or her interest.”

At para 23 the judge went on to state that the legal advice received by the litigation friend is central in the discharge of those duties, the litigation friend has to act “under proper legal advice”. Further the litigation friend has to be able to exercise some independent judgement on the legal advice and in doing this “he must approach the litigation with objectivity”. In doing this the litigation friend must have no interest adverse to the protected party’s interest, see para 27.

In this context it is relevant now to deal with the second limb of our removal application which was to substitute our deputy as the new litigation friend. To my knowledge, the Court of Protection exercise a degree of caution in deputies taking on this role. However, where as here, the matter is decided by a judge within the litigation, there should be no problem. The argument against a deputy exercising that role is that where the deputy is also engaged not just as an expert medico/legally, but also acts in practice for the claimant, the deputy has a financial interest in the outcome of the case. Personally, I have never met a deputy who would contemplate putting his financial interest before that of his client.

In any event the Hinduja case makes clear that it is acceptable for there to be a common interest of the claimant and the deputy, so long as the interest of the deputy is not an adverse interest.

In the Hinduja case Mrs Justice Falk stated at para 62;

“A person is not prevented from being a litigation friend simply because they have a personal interest in the proceedings. It would for example, be relevant if any personal interest that the litigation friend had meant that he or she could not approach the litigation in a balanced way, in the sense of not being able to weigh up legal advice and decide what should be done in the protected party’s best interests. But it would be highly unlikely that a litigation friend would be unable to do so simply because he or she has an interest in the proceedings, in circumstances where that interest is aligned with that of the protected party.”

Thus, we encountered no difficulty in our application to add the deputy as litigation friend.

The judge removed the sister as litigation friend, he did so with consummate skill, it not being an easy task where the litigation friend was unrepresented and needed the help of a translator. The judge specifically found the sister to be well intentioned towards her brother, but that it had all become too heavy a burden for her to exercise the duty competently. He was mindful that her decision to renege from the compromise was illogical in all the circumstances, was not in the best interest of her brother, and also because she had no faith in her solicitor, the present arrangements could not continue.

An application to remove a litigation friend is never straightforward for the legal team, the person you are removing is usually closely connected to the client and is someone with whom you may have worked for a number of years. Nevertheless, the duty is upon the legal team to act to remove where there are sufficient concerns over capability.