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Law Bulletin - May 2006
Practice and Procedure
When should a litigation friend be appointed?
The claimant appealed to the Court of Appeal against a Judge’s decision that an application for the appointment of a litigation friend should be adjourned pending the trial of a preliminary issue as to whether the facts justify the appointment of a litigation friend.
The claimant had suffered a very severe head injury in a road traffic accident. The issue of liability had been agreed on the basis that the defendants would pay 79 per cent of damages. The claimant was accepted as a patient by the Court of Protection, and a receiver was appointed.
Following medical concerns expressed about the claimant’s difficulty in managing his own affairs, the claimant’s sister agreed to act on his behalf in the litigation and an application, supported by a neuropsychiatrist, was made to appoint her as a litigation friend. The defendants opposed the application and relied on the evidence of another neuropsychiatrist.
A joint report from both of them agreed that the claimant was incapable of administrating his own affairs by reason of a mental disorder and should be regarded as a patient. However the claimant’s expert said that he required a litigation friend while the defendant’s expert said that he probably had a capacity to litigate despite not having the capacity to manage his own affairs.
The Court of Appeal held that, under the terms of CPR Rule 21.6(4), there had to be evidence to support any application for an order appointing a litigation friend; this was necessary if the court was to be more than merely a rubber stamp. However it did not follow that the other party was then entitled to put in evidence disputing the basis for such an order.
There was also no basis on which it could be argued that the defendants were at risk of suffering any prejudice from the appointment of a litigation friend, so in a situation where the claimant and the litigation friend both consented to the appointment, where there was adequate evidence to support the application for an order, and where there was no evidence to suggest that the application was anything but a bona fide one, the court should make the order.
Folks -v- Faizey. Court of Appeal, 6 April 2006