Litigation friendsLitigation friends:pre-appointmentLitigation friendsLitigation friends:appointmentLitigation friends(reproduced in full in appendix A)Litigation friends:appointment:without court orderLitigation friends:appointmentLitigation friendsLitigation friends:appointment:without court orderLitigation friends:appointmentLitigation friendsLitigation friends:appointment:without court orderLitigation friends:appointmentLitigation friendsLitigation friends:appointment:without court orderLitigation friends:appointmentLitigation friendsLitigation friends:appointment:without court orderLitigation friendsLitigation friends:appointment:without court orderLitigation friendsLitigation friends:appointment:with court orderLitigation friendsLitigation friends:appointment:with court orderLitigation friendsOfficial Solicitor:litigation friend, asLitigation friends:appointment:with court orderLitigation friendsLitigation friends:appointment:with court orderLitigation friendsLitigation friends:appointment:with court orderLitigation friendsLitigation friends:appointment:with court orderLitigation friendsOfficial Solicitor:litigation friend, asLitigation friends:who may be appointedLitigation friends:P, required byLitigation friends:acting for PLitigation friendsOfficial Solicitor:litigation friend, asLitigation friends:who may be appointedLitigation friends:P, required byLitigation friends:acting for PLitigation friendsLitigation friends:who may be appointedLitigation friends:P, required byLitigation friends:acting for PLitigation friendsCodes of Practice:Deprivation of Liberty Safeguards (DOLS) Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008)(reproduced in full in appendix B)(reproduced in full in appendix A)Litigation friends:who may be appointedLitigation friends:P, required byLitigation friends:acting for PLitigation friendsLitigation friends:who may be appointedLitigation friends:acting for child or protected party other PLitigation friendsLitigation friends:dutiesLitigation friendsLitigation friends:dutiesLitigation friendsLitigation friends:dutiesLitigation friendsLitigation friends:duties:deprivation of liberty casesLitigation friends:dutiesLitigation friendsLitigation friends:duties:litigation friend acting for childLitigation friends:dutiesLitigation friendsLitigation friends:duties:litigation friend acting for childLitigation friends:dutiesLitigation friends(reproduced in full in appendix A):s1(5)Litigation friends:duties:litigation friend acting for childLitigation friends:dutiesLitigation friendsLitigation friends:duties:litigation friend acting for childLitigation friends:dutiesLitigation friends(reproduced in full in appendix A):s1(1)Litigation friends:terminating appointment:capacity regainedLitigation friends:terminating appointment:acting on behalf of PLitigation friends:terminating appointmentLitigation friendsLitigation friends:terminating appointment:capacity regainedLitigation friends:terminating appointment:acting on behalf of PLitigation friends:terminating appointmentLitigation friendsLitigation friends:terminating appointment:capacity regainedLitigation friends:terminating appointment:acting on behalf of PLitigation friends:terminating appointmentLitigation friends(reproduced in full in appendix A)Litigation friends:terminating appointment:capacity regainedLitigation friends:terminating appointment:acting on behalf of PLitigation friends:terminating appointmentLitigation friendsLitigation friends:terminating appointment:capacity regainedLitigation friends:terminating appointment:acting on behalf of adult protected partyLitigation friends:terminating appointmentLitigation friendsLitigation friends:terminating appointment:capacity regainedLitigation friends:terminating appointment:acting on behalf of childLitigation friends:terminating appointmentLitigation friendsLitigation friends:terminating appointment:capacity regainedLitigation friends:terminating appointment:acting on behalf of childLitigation friends:terminating appointmentLitigation friendsLitigation friends:terminating appointmentLitigation friends:removal by courtLitigation friendsLitigation friends:terminating appointmentLitigation friends:removal by courtLitigation friendsLitigation friends:terminating appointmentLitigation friends:removal by courtLitigation friendsLitigation friends:terminating appointmentLitigation friends:removal by courtLitigation friendsLitigation friends:terminating appointmentLitigation friends:removal by courtLitigation friendsOfficial SolicitorLitigation friends:costs:Official SolicitorLitigation friends:costsLitigation friendsOfficial SolicitorLitigation friends:costs:Official SolicitorLitigation friends:costsLitigation friendsLitigation friends:costsLitigation friendsLitigation friends:costsLitigation friendsLitigation friends:costs:payable to other partiesLitigation friends:costsLitigation friendsLitigation friends:costs:payable to other partiesLitigation friends:costsLitigation friendsLitigation friends:costs:payable to other partiesLitigation friends:costsLitigation friendsLitigation friends:costs:payable to other partiesLitigation friends:costsLitigation friendsLitigation friends:costs:payable to other partiesLitigation friends:costsLitigation friends
Pre-appointment
11.26The COPR are silent as to what the court may or may not do as regards the proceedings generally where a party who requires a litigation friend (including P) has not yet had one appointed. It is suggested that the court does have the power to proceed, either under its general case management powers in COPR Pr3.1/COPR r25 and/or, if required, by importing the provisions of the Civil Procedure Rule (CPR) r21.3(3) through the provisions of COPR Pr2.5(1)/COPR r9(1),
1Which provide that: ‘In any case not expressly provided for by these Rules or the practice directions made under them, the Civil Procedure Rules 1998 (including any practice directions made under them) may be applied with any necessary modifications, insofar as is necessary to further the overriding objective’. enabling it to give permission to the other parties to proceed to take steps in the proceedings absent the relevant appointment. The court will seek to do the minimum possible to ‘hold the ring’, pending such an appointment, especially in relation to P, although if needs be the court can proceed simply to make decisions in a suitably urgent case.
2See, for instance, Newcastle-upon-Tyne Foundation Trust v LM [2014] EWHC 454 (COP), [2015] 1 FCR 373, where the medical treatment decision had to be taken in circumstances where it was not possible (in the time available) to appoint the Official Solicitor to act as P’s litigation friend.Appointment
11.27There are two ways in which a litigation friend can be appointed: without a court order and with one. A litigation friend can never be appointed for P without a court order.
Appointment without a court order
11.28A deputy appointed with the specific power to conduct legal proceedings in the name of the protected party is entitled to act as litigation friend without a further order if their power extends to the proceedings in question.
3COPR r142(2). The conduct of legal proceedings is considered an aspect of the management of P’s property and affairs for purposes of MCA 2005;
4MCA 2005 s18(1)(k). it would therefore be very unlikely that a deputy appointed to make decisions in relation to a protected party’s health and welfare would also be given the power by the court to make decisions in relation to the conduct of legal proceedings where that person is then a protected party. If a deputy is to act as litigation friend, the deputy must file and serve an official copy of the order on the other parties (or, if a party is represented by a litigation friend, upon that party’s litigation friend).
5COPR r142(4) and PD 17A para 5.11.29If there is no deputy, a person can become a litigation friend for a protected party or for a child (but not for P) without a court order if they file a certificate of suitability (with a statement of truth
6PD 17A para 8.) on a form COP22
7Which will serve as the requisite consent for purposes of PD 17A para 7(a). stating (among other things) that:
•they can fairly and competently conduct proceedings on behalf of the individual in question;
8COPR r142(3)(a) read together with COPR r140(1)(a). •they have no interests adverse to the individual in question;
9COPR r142(3)(a) read together with COPR r140(1)(b). •that the litigation friend knows or believes that the child or protected party lacks capacity to conduct the proceedings themselves;
10PD 17A para 7(b). •the grounds of the belief set out above (and, if the belief is based upon medical opinion, or the opinion of another suitably qualified expert, attach any relevant document to the certificate).
11PD 17A para 7(c). It is suggested that a court would wish to consider carefully any situation in which a litigation friend had been appointed pursuant to this process absent medical evidence.
12Whether that is from a GP, a psychiatrist or a psychologist will depend upon the circumstances of the case. See Masterman-Lister v Brutton & Co, Masterman-Lister v Jewell and another [2002] EWCA Civ 1889, [2003] 1 WLR 1511, (2004) 7 CCLR 5 at para 17. 11.30The first two bullet points are discussed further at paras 11.45 onwards below.
11.31The proposed litigation friend must serve the certificate of suitability on the other parties (or, if a party is represented by a litigation friend, upon that party’s litigation friend).
13COPR r142(3)(b) and PD 17A para 9. Unless the court directs otherwise, the proposed litigation friend does not need to serve any document relating to the medical or other opinion noted at the last bullet point above.
11.32The proposed litigation friend must then file the certificate of suitability together with a certificate of service on a COP20 form when they first take a step in the proceedings.
14PD 17A para 11.11.33The procedure set out above cannot be used if the court has previously appointed a litigation friend,
15COPR r142(1)(b). because in such situations an order will be required to terminate the appointment of the existing litigation friend (see further paras 11.53 onwards below). It also cannot be used by the Official Solicitor
16COPR r142(1)(c). (perhaps because the Official Solicitor is to be taken automatically to satisfy the suitability requirement and hence should not be required to file such a certificate).
Appointment with a court order
11.34An order appointing a person as a litigation friend for a protected party, a child or – importantly – P (if P is joined to the proceedings) can be made either at the court’s own initiative or upon application by any person (ie not just by the proposed litigation friend).
17COPR r143(2). Any application must be made by filing a COP9
18PD 17A para 13. See further para 10.21 for applications within proceedings. and be supported by evidence
19COPR r143(1). that will allow the court to be satisfied (as it must also be satisfied if it is contemplating making the order of its own initiative) that:
•the proposed litigation friend can fairly and competently conduct proceedings on behalf of the individual in question;
20COPR r140(1)(a). •the proposed litigation friend has no interests adverse to the individual in question;
21COPR r140(1)(b). •the proposed litigation friend consents to the appointment.
22COPR r143(2). 11.35The last of these criteria is self-evident, although note that a litigation friend can make their consent (and continuing consent) contingent on receiving appropriate funding (see para 11.60 below); the first two are discussed at paras 11.46 onwards below. Because the evidence matches that set out in a COP20 certificate of suitability, there is no requirement to file such a certificate where an application is being made.
11.36As noted above, a court order is required in order to appoint the Official Solicitor as litigation friend for a protected party, a child or P.
23COPR r142(1)(c). Although the COPR are silent on this, it would seem that the Official Solicitor is automatically taken to meet the suitability criteria and the Official Solicitor would never be required to file evidence to address these criteria.
11.37If the court considers that it requires further evidence before it can grant an application to be appointed as litigation friend, or if it appears to the judge during the course of proceedings that a party (other than P) may require a litigation friend, but that further evidence is required, directions can be made.
24COPR r143(5). The position where it appears that an adult party other than P may require a litigation friend is addressed at paras 11.14–11.20 above. If P has previously made a successful application to be allowed to instruct representatives directly (see further paras 11.53–11.55 below) but it then appears that the position has changed subsequently, then the same provisions will apply.
11.38The court has the power, exercisable on its own initiative or at the application of any person (whether or not that person is a party) to prevent someone acting as a litigation friend (for any party).
25COPR r144(1).11.39Where the application is made on the basis of the proposed litigation friend’s conduct, it must be supported by evidence.
26COPR r144(2). Where the application is made on the basis that the person (whether that is P, a protected party, or a child) does not require a litigation friend because they, in fact, have the capacity to litigate (or in the case of a child, that one is unnecessary having regard to the factors set out at para 11.23 above), no evidence is required. This is addressed further below at paras 11.53 onwards.
Who may be appointed as a litigation friend?
For P
11.40The Official Solicitor describes himself as, and because of resource constraints takes very seriously his position as, litigation friend of last resort. This means that he will only consider acting where no suitable and willing person can be identified to act. Further, and save in the case of serious medical treatment cases (as to which, see chapter 22), even assuming that there is no other suitable and willing person, the Official Solicitor will only accept an appointment to act subject to being given suitable security for (a) the costs of any external solicitors he or she retains to act for P; or (b) where he acts as solicitor and conducts the litigation, those costs of so acting. In other words, and while the Official Solicitor does not seek to recover his costs of acting as litigation friend, he must be satisfied that the costs incurred either by external solicitors or by his or her staff in acting as solicitors will be met, whether that be from P’s own assets or by way of legal aid. If the Official Solicitor is not given this security he will not act, and if it emerges during the course of proceedings that his legal costs can no longer be met, he will stop acting – and cannot be compelled to continue to act.
27See Bradbury and others v Paterson and others [2014] EWHC 3992 (QB), [2015] COPLR 425. This was a decision in civil proceedings, but the same approach would be applied before the Court of Protection.11.41It is therefore extremely important in any case both to identify whether another person may be suitable to act as a litigation friend and, if it would appear that the Official Solicitor may be the only candidate, to identify the basis upon which the Official Solicitor can be satisfied that his legal costs will be met. A precedent order setting out how the relevant security can be provided can be found online in the precedent section of the
Court of Protection Handbook.
28https://courtofprotectionhandbook.com/precedents/.11.42The appointment of family members, friends and advocates (such as Independent Mental Capacity Advocates
29See, for instance, Re M [2013] EHWC 3456 (COP), [2014] COPLR 35.) as P’s litigation friend has become increasingly common over the past few years, especially in the context of applications in relation to deprivation of liberty (discussed further in chapter 21). Detailed guidance for such individuals considering acting as a litigation friend was commissioned in 2014 by the Department of Health,
30www.law.manchester.ac.uk/medialibrary/Main%20site/LAC/Acting-as-a-Litigation-Friend-in-the-Court-of-Protection-October-2014.pdf. This guidance has been superseded to some extent by events, and should be read subject to the discussion below as to the duties of litigation friends, and also the ability of a litigation friend to act without instructing lawyers. but the following points are of particular importance in relation to such appointments:
•The mere fact that a person (for instance, a family member) has strong views as to where P’s best interests lie does not automatically disqualify them from acting as P’s litigation friend. Indeed, a person with strong and vocal views may very well be the best ‘champion’ for P;
31See Re NRA and others [2015] EWCOP 59, [2015] COPLR 690, (2015) 18 CCLR 392 at paras 163–164. •However, where there is a family dispute concerning P’s best interests, it would be rare for it to be appropriate for a family member to be appointed as P’s litigation friend in proceedings relating to that dispute. If they were to be so appointed, they would have ‘to demonstrate that he or she can, as P’s litigation friend, take a balanced and even-handed approach to the relevant issues’;
32Re UF [2013] EWHC 4289 (COP), [2014] COPLR 93, (2014) 17 CCLR 445 at para 23 per Charles J. See also Re NRA and others at para 169. •In the case of those subject to the deprivation of liberty safeguards (DOLS) regime (see further chapter 21 below), the courts have specifically endorsed the appointment of P’s relevant person’s representative (RPR) as their litigation friend: see
AB v LCC (A Local Authority) and the Care Manager of BCH.
33[2011] EWHC 3151 (COP), [2012] COPLR 314. In
Re UF, Charles J, endorsing
AB, suggested that the possibility of whether the RPR could act as a litigation friend should ‘often’ be investigated;
34Re UF at para 19. •Although it would be unusual for a solicitor to be appointed as litigation friend, this has happened in one publicly available case;
35Re RGS [2012] EWHC 4162 (COP). •It has now been clarified that a litigation friend can act in person (ie without instructing legal representatives).
36Re NRA and others [2015] EWCOP 59, [2015] COPLR 690, (2015) 18 CCLR 392 at para 135. However, in all cases, a litigation friend should consider very carefully whether they can properly discharge their obligation to conduct the proceedings competently without the assistance of legal representatives. If they consider that they cannot, then there would be nothing improper for the person to decline to act absent receiving appropriate security for cost of instructing legal representatives. The terms of the orders that would then be made would be very similar to those made in cases where the Official Solicitor consents to act;
•To act properly as a litigation friend can be an onerous undertaking. Where a paid RPR or an independent mental capacity advocate (IMCA) employed by an advocacy provider acts, it is important therefore that both they and – more importantly – their organisation are aware of the potentially significant amounts of time that may be required on their part properly to conduct litigation on P’s behalf. Specific arrangements will also need to be made to ensure that their costs of acting as P’s litigation friend (and, where appropriate, of instructing legal representatives) are met. The question of the basis upon which RPRs and IMCAs are entitled to reimbursement of their costs is addressed below at para 11.67–11.68, but for present purposes it is important to note that there is a difference between an entitlement to reimbursement and a guarantee that they will not be left out of pocket – ie security for their costs. It should also be remembered that when considering an application for legal aid it is P’s means, and not those of the litigation friend, which will be assessed (see further, chapter 6).
11.43The MCA 2005, the COPR and the practice directions are silent as to whether it must be an individual who acts as litigation friend, or whether the responsibility can be taken on by a body. This is of particular relevance in the context of the involvement of RPRs and statutory advocates who may well – understandably – feel more comfortable (and more sure of themselves in demanding proper time to discharge their roles) if the formal responsibility for acting as litigation friend lies with their organisation, rather than resting solely upon their shoulders. The natural reading of the relevant provisions of the COPR would suggest that the draftsman had in mind the appointment of individuals, rather than organisations, but the position is not entirely clear.
37A trust corporation can be appointed as a deputy to manage P’s property and affairs: MCA 2005 s19(1)(b). Management of property and affairs is specifically said to extend to the conduct of legal proceedings on P’s behalf (MCA 2005 s18(1)(k)). If appointed as deputy, therefore, and if the relevant order included specific provision relating to legal proceedings, a trust corporation could therefore properly bring proceedings on P’s behalf as P’s litigation friend. We would strongly suggest that if any application to be appointed as a ‘corporate’ litigation friend is advanced, then it is made very clear in that application precisely who will have day-to-day responsibility for the conduct of the case on P’s behalf and what arrangements are in place to ensure continuity of consideration in the event that that individual is unavailable.
Acting for a child or a protected party other than P
11.44Essentially the same considerations as set out above in relation to P also apply in terms of the appointment of a suitable litigation friend to represent children or adult protected parties other than P. In particular, it should be noted that it is not unheard of for the Official Solicitor to act for other parties in addition to P: the authors have experience of one case in which the Official Solicitor was acting for two other family members as well as P. In such cases, where it is quite possible that it is necessary that different individuals have different cases advanced on their behalf, the Official Solicitor will put in place ‘Chinese walls’ to ensure that such can be carried out ie, strict rules to ensure that each caseworker only sees the information relevant to their case.
Duties of the litigation friend
General
11.45The first edition of this work contained an extensive discussion of the duties of the litigation friend, noting in particular the absence of guidance in case-law or elsewhere. Since then, decided cases have made the position clearer, and this section is therefore considerably shorter than in the previous edition. However, whether the decided cases are correctly decided, and whether litigation friends should not be adopting a rather different role, at least in relation to P, are difficult questions. Lack of space precludes consideration of it here, but interested readers are referred to an article published by Alex Ruck Keene, Peter Bartlett and Neil Allen in which these issues are examined in detail.
38Litigation Friend or Foe? Representation of P before the Court of Protection [2016] Medical Law Review (forthcoming).11.46The COPR draws no distinction between the roles of a litigation friend depending upon whether they are acting on behalf of P or on behalf of a protected party (or, indeed, a child, a position addressed further at paras 11.49–11.52 below). In all cases, a litigation friend must (in order to be appointed) be able fairly and competently to conduct the proceedings.
39COPR r140(1). Whether rightly or wrongly, the case law (which has not to date included consideration of child parties) also proceeds on the basis that a litigation friend is under the same obligations no matter who they act for.
11.47The role of the litigation friend has been held to be to form a view as to what is in the person’s best interests and then advance that view to the court, although it may not accord with what the person is asserting.
40Re NRA and others [2015] EWCOP 59, [2015] COPLR 690, (2015) 18 CCLR 392 at para 170. Where the litigation friend is acting on behalf of P, the ‘solution’ that they must advance on P’s behalf is the substantive outcome that they consider would best meet P’s interests. Moreover, whether acting for P or for another party (or child) the litigation friend is not required to advance a case that would accord with the person’s wishes if they consider that to do so would be unarguable, on the (to us the questionable) basis that such would not be in their best interests.
41Re NRA and others [2015] EWCOP 59, [2015] COPLR 690, (2015) 18 CCLR 392 at para 144, citing RP v UK (App No 38245/08, decision of 9 October 2012), [2013] 1 FLR 744, (2013) 16 CCLR 135. However, in all cases, the litigation friend must take all necessary steps to relay the individual’s wishes and feelings to the court upon the relevant issues in the case.
42See by analogy RP v UK (App No 38245/08, decision of 9 October 2012), [2013] 1 FLR 744, (2013) 16 CCLR 135.Deprivation of liberty cases
11.48It is suggested that litigation friends should proceed with particular caution where P’s right to liberty under ECHR Article 5 is engaged, and in particular in cases brought under MCA 2005 s21A in relation to authorisations granted under the DOLS regime (see further chapter 21). There is a considerable body of case-law from the European Court of Human Rights emphasising the importance of ensuring that the right to challenge a deprivation of liberty under Article 5(4) is effective.
43Summarised in AJ (Deprivation of Liberty Safeguards) [2015] EWCOP 5, [2015] Fam 291, (2015) 18 CCLR 158 at para 35. See also, subsequently, the decision of the ECtHR in AN v Lithuania (App No 17280/08, decision of 31 May 2016). In light of that case-law, it is suggested that in a case involving a deprivation of liberty:
•a litigation friend for P must
always consider testing whether it is correct that the assertion implicit in a request that the court uphold an authorisation or otherwise approve a deprivation of liberty that the regime in question is the least restrictive option. In other words, and to use the language of the ECtHR, the litigation friend must consider testing whether other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained;
44As, for instance, did the Official Solicitor in Y County Council v ZZ [2013] COPLR 463, in which ZZ vigorously disputed the necessity for the restrictions imposed upon him – primarily so as to secure against the risk that he would commit sexual offences against children. •where P wishes to challenge that deprivation, then we would suggest that the litigation friend is, in fact, obliged to do so unless satisfied, after the most careful deliberation, that there truly is no properly arguable case that the deprivation of liberty does not represent the least restrictive requirement. If this is the case, then we would further suggest that it would never be appropriate for the litigation friend actively to concede that the deprivation of liberty was in P’s best interests. At most, we would suggest, the litigation friend could leave it to the judge to decide (having ensured that P’s views were relayed to the court). We suggest this is likely in most cases also to require an oral hearing.
Litigation friends acting for a child
11.49As set out at paras 11.21–11.25 above, whilst a child must have a litigation friend unless the court orders otherwise,
45COPR r141(3)–(4). there are – logically – two different reasons why this might be so: a) because their age and maturity means that they are not ‘
Gillick-competent’;
46Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, [1986] 1 AC 112. or b) because they suffer from a material disturbance or impairment of the mind or brain.
11.50A litigation friend acting on behalf of a child over the age of 16 who suffers from a material disturbance of the mind or brain giving rise to a lack of litigation capacity is, we suggest, in the same position as a litigation friend acting on behalf of an adult protected party.
11.51Strictly speaking, then whether or not litigation friends are, in general, bound to act pursuant to MCA 2005 s1(5),
47As to which, see the article by Alex Ruck Keene et al cited at footnote 86 above. the same does not go for:
•a litigation friend acting on behalf of a child under the age of 16 who suffers from a material disturbance or impairment of the mind or brain, as MCA 2005 s1(5) could never apply to the litigation friend’s actions given the wording of MCA 2005 s2(5);
48Which provides that no power may be exercised by a person under the MCA 2005 in relation to a person who lacks capacity under the age of 16; the exception in section 18(3) would not apply. •a litigation friend acting on behalf of a child under 18 who requires a litigation friend because of their age and lack of maturity, MCA 2005 s1(5) not being capable of applying to them because there is no relevant impairment or disturbance of the mind or brain.
11.52In either of these circumstances, it is therefore suggested that a litigation friend acting for a child takes their duties from COPR r140, albeit (by analogy with the situation where a litigation friend is appointed for a child in family proceedings), all steps and decisions the litigation friend takes in the proceedings must be taken for the benefit of the child.
49FPR PD 16A para 2.1.Terminating the appointment of a litigation friend
Litigation friend acting on behalf of P: capacity gained or regained
11.53Any person – including P themselves – can apply to discharge the appointment of P’s litigation friend if P has (1) gained, (2) regained or (3) asserts that they have always had capacity to conduct the proceedings.
50COPR r144(1). By contrast to the position where an application is brought to terminate the appointment of the litigation friend on the basis of their conduct, there is no need to file evidence with the application.
51The silence in COPR r144(2) in this regard is deliberate. The court will no doubt decide what evidence is required in any given case, bearing in mind the presumption of capacity contained in MCA s1(1). The appointment of the litigation friend will continue in force until the court brings it to an end by an order,
52COPR r144(4). in which it will no doubt make appropriate directions consequential upon the termination of the appointment (for instance as to where documents are to be sent to P in circumstances where they are no longer to be sent to the litigation friend).
11.54Examples of applications made by or on behalf of P to discharge a litigation friend appointed to act on their behalf are rare. Indeed, the authors are aware of only one reported application, made in the medical treatment case of
Re SB,
53[2013] EWHC 1417 (COP), [2013] COPLR 445. where the Official Solicitor applied successfully to be discharged on the basis of expert evidence that P had litigation capacity.
54See paras 27–30.11.55However, save in a case where it is entirely clear that P can never have litigation capacity because of the severity of their underlying disability, the litigation friend acting on P’s behalf should be very astute to keep P’s capacity to conduct the litigation under review and, if it appears that they may have regained it, take immediate steps to bring matters before the court in short order.
11.56If P has either gained or regained capacity in relation to the matter or matters to which the application relates, then the court will have no jurisdiction under the MCA 2005 and an application should be made to bring the proceedings to an end
55Under COPR r87, the application being made on a COP9 form (see further para 10.21for applications within proceedings). (see further chapter 15). Such an application must be supported by evidence.
56COPR r87(2)(b).Litigation friend acting on behalf of an adult protected party: capacity gained or regained
11.57Where an adult protected party ceases to lack capacity to conduct the litigation, an application can be made for the litigation friend’s appointment to be discharged, in the same way as discussed above in respect of P themselves
57COPR r144(1). (para 11.53 above). Any person may make such an application, including the protected party themselves.
58COPR r144(1). There is no need for evidence to be filed to support such an application.
Litigation friend acting on behalf of a child: capacity gained or regained
11.58An application can be made during the currency of proceedings that a child no longer requires a litigation friend to conduct the proceedings on their behalf.
59ie for an order under COPR r144(1). This would be appropriate if, for instance, the litigation friend considers that a child not suffering from any disability but previously requiring a litigation friend because they were not
Gillick-competent
60Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, [1986] 1 AC 112. has now matured sufficiently to understand and conduct their own litigation. Formally, there is no requirement for evidence to support such an application, but it is suggested that the court would be likely to wish (at a minimum) a statement from the litigation friend explaining the basis upon which they consider that the child is now
Gillick-competent.
Litigation friend acting on behalf of a child: child reaching majority
11.59When a child party to proceedings turns 18, then, if they are not a protected party (ie an adult without litigation capacity), the appointment of the litigation friend will come to an end automatically.
61COPR r145A. The child must, though, serve notice on every other party stating that they have reached full age, that the appointment of the litigation friend has ended, and providing their address for service.
62COPR r145A.Any litigation friend: other situations
11.60Any litigation friend can also be removed by the court:
•on their own application (if, for instance, P is no longer eligible for public funding and the litigation friend cannot continue to discharge their functions without such funding to pay for legal advice and representation);
63See by analogy Bradbury and others v Paterson and others [2014] EWHC 3992 (QB), [2015] COPLR 425. •on the application of any person (including, logically, both any party or indeed P); or
•of the court’s own motion.
64COPR r144(1). 11.61Where the application is brought on the basis of the litigation friend’s conduct, the application must be supported by evidence.
65COPR r144(2).11.62COPR r144 does not place any limit on the power of the court to terminate the appointment of a litigation friend. In
Re A (conjoined twins: medical treatment) (No 2),
66[2000] EWCA Civ 254, [2001] 1 FLR 267. Ward LJ commented on the:
… particular situation in which the court is asked to replace a guardian ad litem because the guardian has in the conduct of litigation taken a course of action (in which we include an omission), or is about to take a course of action, which is manifestly contrary to the best interests of the child whose interests it is the guardian’s duty to safeguard. If the guardian (or litigation friend) does act manifestly contrary to the child’s best interests, the court will remove him even though neither his good faith nor his diligence is in issue.
11.63It is suggested that a similar approach would be adopted in the Court of Protection (subject to the discussion at paras 11.45–11.48 above as to the precise scope of the litigation friend’s duties).
11.64In any case where a litigation friend’s appointment is terminated, the court will strive, if at all possible, to appoint a suitable person to act as replacement litigation friend
67COPR r144(1)(c), the substitute litigation friend being required to fulfil the conditions set by COPR r140(1): COPR r144(3). so that the proceedings can continue in an uninterrupted fashion.
Costs and the litigation friend
Costs incurred by the litigation friend
The Official Solicitor
11.65The Official Solicitor is placed in a special position by virtue of COPR r163, which provides that his or her costs (if they are not met by payments made out of P’s estate, by P’s deputy, donee or attorney) shall be paid by such person or out of such funds as the court may direct. As noted above, the Official Solicitor will not accept an invitation to act as litigation friend if he or she is not satisfied that there is provision for the (in-house or external) litigation costs to be met.
11.66Largely for historical reasons, the Official Solicitor receives sufficient central government funding to conduct (in-house) proceedings relating to serious medical treatment cases (as to which, see further chapter 21), and is also conventionally awarded half the costs of so doing against the relevant NHS body: see
An NHS Trust v D.
68[2012] EWHC 886 (COP), [2012] COPLR 499. The Official Solicitor will in general decline to act in such cases until an undertaking to meet half of his or her costs has been received from the NHS body in question.
Other litigation friends
11.67There are no equivalent statutory provisions to those relating to the Official Solicitor to guarantee reimbursement for others who act as litigation friend (whether for P or another individual requiring such representation). In
B v B,
69[2010] EWHC 543 (Fam), [2012] COPLR 480. a case concerned with the ability of the Official Solicitor to recover his costs of acting as the litigation friend of an adult in matrimonial proceedings, Bennett J held that a litigation friend acts as the agent of the protected party and is entitled to be reimbursed by the protected party for the properly incurred costs of so acting.
70Paras 15, 30 and 41.11.68It is suggested that this principle holds true in Court of Protection proceedings for all litigation friends. There is, though, a difference between an entitlement to reimbursement and security for costs – ie a guarantee that the costs incurred (if properly incurred) will be repaid. As set out at para 11.40 above, it is suggested that – as with the Official Solicitor – it is entirely proper for a litigation friend such as an IMCA or family member to decline an invitation to act without sufficient security for their costs of so doing.
Costs payable to other parties
11.69A curious feature of the COPR is that (unlike the CPR
71CPR 21.4(c).) they do not provide any circumstance under which the litigation friend is required personally, as a condition of acting, to undertake to pay the costs incurred by other parties in proceedings before the Court of Protection. That most likely reflects the general rules on costs in such proceedings which are to the effect that either a) P is to pay the costs of proceedings relating to their property and affairs;
72COPR r156. or b) there should be no order as to costs in proceedings relating to P’s health and welfare
73COPR r157. (see further chapter 16 below).
11.70It is clear, however, that the party on whose behalf the litigation friend acts can be made the subject of a costs order – and, indeed, at present, the general rule in property and affairs proceedings is that P will be required to pay the costs of those proceedings (including those costs incurred by others).
74COPR r156. There is no reason in principle why a child or an adult protected party could not also be made the subject of a costs order. It would be the responsibility of the litigation friend to take appropriate steps to ensure that these costs are met (it is suggested as part of their duties to the court in the conduct of the litigation). It is not clear, however, that this would, formally give rise to a personal liability on the part of the litigation friend to meet the costs.
75It may be that the obligation arises at common law, see ex p Brocklebank (1877) 6 Ch D 358 at 360. Even if it did, however, it is suggested that the litigation friend can look to the individual to reimburse them, at least if the proceedings have been properly conducted on the part of the litigation friend.
76See, by analogy, Re E (Mental Health Patient) [1984] 1 WLR 320 at 324H per Sir Robert Megarry V-C, and also B v B [2010] EWHC 453 (Fam), [2012] COPLR 450.11.71Any litigation friend (theoretically including the Official Solicitor) is, however, potentially at risk of being ordered to pay costs
themselves. Even though they are not, themselves, a party to proceedings, the COPR has provision for costs orders to be made against non-parties.
77COPR r166.11.72In the absence of further guidance to clarify the scant provisions of the COPR as they relate to litigation friends other than the Official Solicitor, it has become an increasing practice for RPRs and IMCAs in welfare proceedings to make their agreement to act as litigation friend conditional on the giving of an undertaking on the part of the relevant public authority that they will not seek their costs against the RPR/IMCA. It is suggested that this is a useful mechanism by which RPRs/IMCAs can be given reassurance in the discharge of what is an important public function, although it cannot (and would not be seen by the court as) acting as a carte blanche to the RPR/IMCA acting as litigation friend to depart from the proper and proportionate conduct of litigation.
11.73There are no reported cases in which a litigation friend has themselves been made the subject of a costs order in the Court of Protection, and it is suggested that such an order would only be made in the event of serious misconduct on the part of the litigation friend, especially if such misconduct had the consequence of increasing the costs of the proceedings. In the event of such misconduct, it is further suggested that a local authority that had given an undertaking of the nature described in the paragraph immediately above would readily be relieved of its obligation by a judge and given permission to seek their costs as against the litigation friend personally.