What is a litigation friend?

A litigation friend is someone who makes decisions about a court case on behalf of someone who is unable to manage their case for themselves. A litigation friend can conduct proceedings on behalf of someone who is:

• A child under 18 years of age, or;
• A vulnerable adult – someone over the age of 18 who has been found to lack the mental capacity to conduct their own court case.

A litigation friend will only be involved in certain types of cases. These are:

• A civil case, but not a tribunal;
• A family case, or;
• A Court of Protection case.

This article will focus on the role of a litigation friend in Court of Protection cases. These are cases which concern vulnerable adults who have been assessed to lack capacity to make certain decisions for themselves. This article will not be discussing children with litigation friends.

Why would someone need a litigation friend?

If someone is involved in court proceedings (we call this being a ‘party’ to proceedings), they must be able to manage their case for themselves. Being able to manage a court case is called having ‘capacity to conduct proceedings’.

Having capacity to conduct proceedings means that:

• If the party wants to use a lawyer, they must be able to ‘give instructions’ to their lawyer. ‘Giving instructions’ means letting their lawyer know what they would like them to do and what decisions they would like their lawyer to make in their case.
  
• If they choose not to use a lawyer, or are unable to find legal representation, they must be able to take part in court proceedings by completing the necessary court paperwork and being able to understand the decisions that the judge makes.

If the party cannot do these things, they may be found to lack capacity to conduct proceedings. The court can then appoint a litigation friend who will carry on the proceedings on behalf of the person.

Court of Protection

The Court of Protection makes certain decisions for adults who cannot make those decisions for themselves at the relevant moment that the decision needs to be made. This is called ‘lacking the mental capacity’ to make a decision. The Court of Protection will take into account the wishes and feelings of the vulnerable person and will then make the decision in the best interests of the person.

The Court of Protection was established as part of the Mental Capacity Act 2005, and deals with property and affairs matters, for example, wills, deputyships, and gifts. The Court of Protection also deals with health and welfare issues such as where someone should live, or what care they should receive.

By deciding what should be done in the best interests of someone who lacks capacity, the Court of Protection ensures the rights of vulnerable adults. The role of the litigation friend is crucial in this process.

Who can be a litigation friend?

Anyone can act as a litigation friend for someone who lacks capacity to conduct proceedings, as long as they are able to act competently and fairly on behalf of the vulnerable person. There are no rules to say that it must be a family member or a professional, although often it will be.

If there is no one who is willing and suitable to act as litigation friend, there is a government body called the Official Solicitor who will be appointed. There is a team of solicitors and caseworkers at the Official Solicitor, and the vulnerable person’s case will be assigned to one of them to act as litigation friend.

A litigation friend is not the same as the vulnerable person’s lawyer. Remember, the litigation friend conducts proceedings on behalf of the vulnerable person where they are unable to do so for themselves. If they were able to conduct proceedings for themself, they may choose to instruct a lawyer. Therefore, the litigation friend acting on their behalf will be responsible for instructing a lawyer for them. When a law firm takes on the case, the litigation friend is then the lawyer’s client and it is the litigation friend who gives instructions to the lawyer.

Someone who is qualified as a lawyer may act as a litigation friend, however they will not be acting in their capacity as a lawyer. Therefore where a lawyer is acting as a litigation friend, it will usually be necessary for them to instruct a further lawyer to represent the vulnerable person if they want the vulnerable person to have a legal representative.

What responsibilities does a litigation friend have?

The litigation friend must manage proceedings on behalf of the vulnerable person, which means: making decisions in the case, updating the vulnerable person on what’s happening in their case, receiving updates from the lawyer and giving the lawyer instructions in the vulnerable person’s best interests.

The litigation friend must always remember that they are not a ‘party’ themselves but are acting on behalf of the vulnerable person. Further, they must do so competently and fairly.

The litigation friend will need to take a view as to whether the vulnerable person has capacity to take the decisions being discussed in court. If they conclude that the person does have capacity, they must bring this to the attention of the court immediately.

Key to the role of the litigation friend is undertaking visits to the vulnerable person in order to find out their wishes and feelings. The litigation friend, or their lawyer, will make a note of their visit and put it before the court, ensuring that the vulnerable person’s voice is heard in proceedings.

When does the litigation friend stop acting?

The litigation friend will cease to act for the vulnerable person when the court proceedings come to an end.

If the vulnerable person is found to regain capacity to conduct proceedings then any of the parties can apply to have the litigation friend discharged. If the vulnerable person regains capacity to make decisions about the relevant issues in the case (for example, where they live or what care they should receive), the proceedings may come to an end entirely.

The court may also remove a litigation friend in situations where they have acted negligently or in bad faith, but also where they have been well-meaning but nonetheless have acted contrary to the vulnerable person’s best interests.

In cases where there is a deprivation of liberty, sometimes this will be extended even though the case is concluded. Usually, there will be yearly reviews of the deprivation of liberty. The litigation friend will need to consider how they will be involved in the review process. If they do not wish to be involved, they must arrange for an alternative litigation friend or representative to be appointed. There are other types of representatives that can be appointed for such reviews however that is beyond the scope of this article.

By acting on behalf of the vulnerable person in their best interests, as well as presenting the vulnerable person’s wishes and feelings to the court, and updating the vulnerable person on their case, the litigation friend enables the vulnerable person’s voice to be heard in court and ensures they are made central to proceedings. The litigation friend is therefore a crucial role in ensuring the rights of vulnerable adults.

If you have a legal matter which concerns any of the issues in this article, please feel free to contact our Court of Protection team and they will happily discuss whether we can assist with your matter.

For more information, please contact us on 020 8514 9000