What are the key duties and responsibilities of a Litigation Friend?
A litigation friend is someone appointed to manage legal proceedings on behalf of someone who cannot do it themselves. This can be where the case relates to a child (under 18) or an adult who lacks mental capacity.
Acting as a litigation friend is a serious responsibility. If you are considering applying to become someone’s litigation friend or a court has appointed you to this role, it is important to understand the duties you will be asked to carry out and the responsibilities you are taking on.
In this article, we cover what a litigation friend is, their key duties and responsibilities, as well as a number of other common questions and concerns.
Please note: the contents of this article are provided for general information purposes only and should not be taken as legal advice. For specific legal support with your situation, please contact a member of our team for help.
What is a litigation friend?
A litigation friend can be appointed by a court when there is a legal case involving someone who does not have the capacity to make decisions (referred to as the ‘protected party’).
The litigation friend will make decisions in the best interests of the person they are supporting, consulting them on their views and keeping them informed about the case appropriately. .
When might a litigation friend be needed?
A litigation friend may be required when a case relates to a child (under18) or an adult who does not have the necessary mental capacity, for example, due to learning difficulties or a brain injury.
They may be required in civil cases, family law cases and cases involving the Court of Protection. Litigation friends are commonly used in cases involving claims for compensation related to medical negligence and personal injuries where the claimant lacks capacity or the injured party is under 18.
Who can act as a litigation friend?
A litigation friend will either have a personal connection to the protected party or be an appropriate professional. Parents, guardians, family members and friends are all commonly appointed as litigation friends. Professionals who can carry out the role include solicitors and professional advocates.
The person being appointed as a litigation friend might already be acting as a Court of Protection deputy or under a Power of Attorney for the person they are supporting, but this is not required.
How is a litigation friend appointed?
A suitable person can apply to be someone’s litigation friend or a court can choose to appoint someone to this role.
If you wish to apply to become a litigation friend, you can do so in two ways. If you are already acting as the person’s Court of Protection deputy and the deputyship gives you permission to act as their litigation friend, then this should be all that is required to support your application. Otherwise, you will need to complete a ‘certificate of suitability’ to demonstrate why you are an appropriate person to carry out this role.
If you would like someone else, such as a solicitor, to be appointed as a litigation friend for a loved one, then you can make an application to the court for this. You will need to provide the court with various information, including evidence that the person you wish to have appointed agrees to carry out the role, and that they are suitable and able to do so.
What are the duties of a litigation friend?
A litigation friend has four main duties:
- Making decisions in the best interests of the protected party.
- Taking all reasonable steps to find out the wishes of the subject of the case and inform them of its progress.
- Liaising with the subject’s solicitor, including seeking their advice and giving them instructions on how to proceed.
- Paying any costs required as part of the case.
What legal responsibilities does a litigation friend have?
The legal responsibilities of a litigation friend are essentially the same as the duties set out above. It is important, however, for potential litigation friends to fully understand the possible risks of taking on the role, particularly in relation to liability for court-ordered costs.
A litigation friend will usually be responsible for payment of any court fees for the case where they are supporting someone. A litigation friend can be held personally responsible for costs, similar to a claimant or defendant, not just for the protected party’s potential liability. Perhaps more importantly, they can also potentially be liable for any court-ordered costs, meaning a litigation friend’s own finances are at risk if the case goes against the protected party.
Previous court decisions have set a precedent that litigation friends for claimants in civil cases can be held liable for costs orders. This is something you should discuss carefully with a solicitor at the outset of a case.
How can a litigation friend determine what is in the best interests of a protected party?
A litigation friend must act in the best interests of the person they are supporting, but working out what those best interests are may not always be straightforward. They will need to consider factors such as what the protected party would be likely to decide themselves if they had capacity and what would be the least restrictive option for their rights and freedoms.
As much as possible, a litigation friend should seek the protected persons opinion to help inform this process.
How long does being a litigation friend last for?
Being a litigation friend usually lasts until a case has concluded, unless a court decides to remove the litigation friend from their role or they voluntarily remove themselves.
If the case involves a child, the role will normally end when they turn 18, unless they do not have the mental capacity to make decisions for themselves (e.g. due to learning difficulties).
Where the subject does not have mental capacity, the role of litigation friend will usually end if they ever regain this capacity (e.g. if they experienced a brain injury but have now recovered sufficiently to regain capacity).
How can you stop being a litigation friend?
If you wish to stop being a litigation friend, you can apply to a court for a replacement. Someone else can apply to the court for you to be replaced, for example, if they feel you are not carrying the role out appropriately. A court could also independently decide to replace you if it is believed you are not carrying the role out to the required standard.
How can a solicitor help someone acting as a litigation friend?
It is strongly recommended to work closely with a solicitor if you are acting as a litigation friend. They can advise you on your duties and responsibilities, help with the decision-making process, and ensure you carry out your role to the best of your ability.
A solicitor can also act as a professional litigation friend if required. This can be a good way to ensure a person without capacity gets the very best support while allowing loved ones to focus on providing personal support.
Contact our expert team today
For bespoke and sensitive advice from our lawyers, you can contact our legal team in Bury St Edmunds, Cambridge, Ipswich, Leeds and Norwich.
Alternatively, please fill in our online enquiry form and a member of our team will be in touch shortly.
How can we help?
If you have an enquiry or you would like to find out more about our services, why not contact us?