Litigation friend cases
The old category structure used on this page is comprehensive as it contains every relevant case. The new database structure was introduced in 2019. It is more potentially useful than the old categorisation system: it includes all cases since January 2017, but only a minority of older cases: see Special:Drilldown/Cases. The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.
|Case and summary
|* Litigation capacity and litigation friend Greetham v Greetham  EWHC 998 (QB) — The court considered whether the defendant lacked capacity to conduct litigation, and was therefore a protected party; and if so whether his brother's application to be appointed as litigation friend satisfied the conditions of Civil Procedure Rules, rule 21.4(3) as applied by rule 21.6(5).
|2021 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Litigation friend cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii
|* Protected party and Part 36 Wormald v Ahmed  EWHC 973 (QB) — After suffering a cardiac episode in September 2020, the claimant in this road traffic PI claim (through his litigation friend) accepted a Part 36 offer made in 2014, and died later the same day. The defendants sought to withdraw the offer when informed of the death. The court considered the following questions: (a) where a protected party accepts a Part 36 offer is the other party subsequently able to withdraw that offer before approval of the settlement? and (b) when the court is asked to approve a settlement, on what grounds (if any) can a Part 36 offer be withdrawn and approval of a settlement be refused? On the facts (including the disparity in the parties' knowledge about the changed prognosis) it seemed unjust for the defendant to be bound by the Part 36 offer, but a final determination would be made after the claimant had had the opportunity to provide further information.
|2021 cases, Cases, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii
|* EAT capacity and litigation friend Stott v Leadec Ltd (2020) UKEAT 263/19 — The Employment Appeal Tribunal adjourned for a medical report on litigation capacity and commented on the continuing lack of rules rules containing clearly defined powers in relation to proceedings involving protected parties (as defined in Part 21 of the CPR) in employment tribunals and in the EAT.
|2020 cases, Cases, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii
|* Protected party - litigation friend Hinduja v Hinduja  EWHC 1533 (Ch) — (1) Medical evidence on capacity to conduct proceedings is not required under the CPR, and in this case to require it would not be necessary or in accordance with the overriding objective. The court decided that SP was a protected party. (2) The defendants argued that the proposed litigation friend failed both limbs of the relevant test (ability fairly and competently to conduct proceedings and having no adverse interest). Having considered the tests (including noting that "[w]hether the existence of a financial interest on the part of the litigation friend should debar [her] from acting will depend on the nature of the interest, and whether it is in fact adverse or whether it otherwise prevents the litigation friend conducting the proceedings fairly and competently on the protected party's behalf") the court made the appointment sought.
|2020 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Litigation friend cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii
|* Parole Board representation for those lacking capacity R (EG) v Parole Board  EWHC 1457 (Admin) — (1) The Parole Board Rules 2019 introduced a power to appoint a representative "where the prisoner lacks the capacity to appoint a representative and the panel chair or duty member believes that it is in the prisoner's best interests for the prisoner to be represented". In the absence of anything similar to the accreditation system operating in the MHT (and the LAA's pragmatic approach to the regulation preventing providers from making an application for Legal Aid) a solicitor cannot "assume the dual role of legal representative and litigation friend" and so this appointment power cannot be exercised. (2) The 2019 rules, although silent on the matter, allow for the appointment of a litigation friend because: (a) "other representative" in the expression "solicitor, barrister or other representative" includes litigation friend; and, if that is wrong, (b) as with the 2016 rules, it is allowed when necessary under the general power to make directions. (3) In the absence of an accreditation scheme or other litigation friend, the prisoner needed the Official Solicitor to act if his parole review was to progress; (obiter) the OS has the statutory power to act in Parole Board proceedings. (4) The judge limited her decision to issues concerning EG individually, and criticised counsel for EG and the EHRC for continuing the trend in public law litigation of grounds of challenge evolving during proceedings in a way which lacked procedural rigour (in this case, by raising wider issues including the identification and assessment of non-capacitous prisoners and the Public Sector Equality Duty).
|2020 cases, Cases, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Prison law cases, Judgment available on Bailii
|* Appointeeship, independent appeals, litigation friends RH v SSWP  UKUT 48 (AAC) — AACR headnote: "Appointment to act - whether claimant with appointee precluded from bringing an appeal independently - whether First-tier Tribunal having power to appoint a litigation friend"
|2018 cases, Cases, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii
|* Pregnancy - OS out-of-hours representation Guy's and St Thomas' NHS Foundation Trust v X  EWCOP 35 — (1) Official Solicitor's lack of out-of-hours service: "... I invite the Official Solicitor to urgently review this position and consider putting in place arrangements that will ensure appropriate representation out of normal court hours for those individuals who are the subject of urgent applications that potentially involve serious medical treatment. ... [E]very effort must be made to issue such applications during normal court hours." (2) Pregnancy: "Having considered the submissions of the parties there is, in my judgment, in accordance with s 48 Mental Capacity Act 2005, reason to believe that X lacks capacity in relation to the matter, namely the medical intervention that may be necessary for X to give birth to a baby who is safe and well. On the evidence the court has from Dr Y, which I accept, his assessment is X is unable to reconcile her conflicting beliefs (on the one hand of wanting a natural birth and also wanting a live, well and safely born baby) in a way that she is able to balance the pros and cons. Additionally, there is, in my judgment, a real risk the position is unlikely to change and is more likely to deteriorate. He concluded X showed limited insight in relation to her previous mental ill- health. I have carefully considered the submissions on behalf of the Official Solicitor regarding capacity but looking at all the evidence and information available to the court I am satisfied the interim declaration should be made."
|2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Medical treatment cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii
|* Immigration tribunal - fair hearing, litigation friends AM (Afghanistan) v SSHD  EWCA Civ 1123 — In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached."
|2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii
|* Litigation friend LJ v Mercouris  EWHC 1746 (QB) — "The essential questions are: (1) Does Mr [J] lack capacity within the meaning of the Mental Capacity Act 2005. (2) Is the court satisfied that Mrs [J] satisfies the conditions in Rule 21.4 (3). This requirement is incorporated by Rule 21.6 (5). The main function of a litigation friend appears to be to carry on the litigation on behalf of the Claimant and in his best interests. However, part of the reasoning for imposing a requirement for a litigation friend appears also to be for the benefit of the other parties. This is not just so that there is a person answerable to the opposing party for costs."
|2019 cases, Cases, Judgment available on Bailii, Litigation capacity cases, Litigation friend cases, Pages using DynamicPageList3 parser function, Judgment available on Bailii
|* Litigation friends for children in immigration tribunal proceedings R (JS) v SSHD  UKUT 64 (IAC) — The Upper Tribunal provided mainly age-based guidance on whether a child applicant in immigration proceedings requires a litigation friend, and on the role of the litigation friend.
|2019 cases, Cases, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Repatriation cases, Judgment available on Bailii
|* Litigation friend under employment tribunal rules Jhuti v Royal Mail Group Ltd (Practice and Procedure) (2017) UKEAT 0062/17 — Summary from judgment: "While there is no express power provided by the ETA 1996 or the 2013 Rules made under it, the appointment of a litigation friend is within the power to make a case management order in the 2013 Rules as a procedural matter in a case where otherwise a litigant who lacks capacity to conduct litigation would have no means of accessing justice or achieving a remedy for a legal wrong."
|2017 cases, Cases, ICLR summary, Judgment available on Bailii, Litigation friend cases, Pages using DynamicPageList3 parser function, Powers, Judgment available on Bailii
|* Loss of litigation capacity Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust  EWHC 168 (QB) — "These costs appeals raise the question of whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor's retainer. The question is currently of particular importance for solicitors conducting personal injury claims pursuant to conditional fee agreements entered into before 1 April 2013, in respect of which success fees continue to recoverable from defendants ... If such an agreement is found to have terminated by reason of the supervening incapacity of the claimant ... it would not now be possible to replicate the effect of the original contractual arrangements between solicitor and client given that success fees are not generally recoverable in respect of agreement made on or after 1 April 2013 ... No matter how short the period of incapacity ... nor how quickly a deputy was appointed by the Court of Protection in respect of the claimant, the original CFA would be lost and could not, in real terms, be replaced. ... For the reasons set out below, I have reached the ... conclusion ... that the intervening incapacity of a party does not frustrate or otherwise terminate a solicitor's retainer. Whilst such incapacity does have the effect of removing the authority of the solicitor to act on behalf of the party lacking capacity for the duration of that incapacity, such authority can be restored when a deputy is appointed and provides instructions to the solicitors in that capacity, or otherwise if and when the claimant regains capacity. There is no reason, as a matter of authority or legal principle, why an inability to instruct solicitors in the intervening period (which may be quite short) should be taken to have the effect of immediately ending a solicitor's retainer."
The following 12 pages are in this category.