In any proceedings where a child (a person under the age of 18) or a protected person (someone who lacks capacity under the Mental Capacity Act 2005) is a Claimant, decisions will have to be made during the proceedings by a person, other than the solicitor or legal adviser, on the Claimant’s behalf where they cannot make those decisions for them issues.

Who Can Act as a Litigation Friend?

The court rules require that a child or protected party must have a Litigation Friend to conduct proceedings on their behalf. You may act as the Litigation Friend only if you are able to:

1. Fairly and competently conduct proceedings on behalf of the child or protected party;
2. Act in a way that is not adverse to the interests of the child or protected party;
3. Undertake to pay any costs in the proceedings which the court may order the child or protected party to pay. This is subject to any right you may have to be repaid such costs out of the assets of the child or protected party.

What Are the Responsibilities of a Litigation Friend?

It is very important that you understand the responsibilities that are placed upon you as a Litigation Friend where court proceedings are issued in your name.

As the Litigation Friend named in any court proceedings, as stated above you will assume responsibility for the costs of the action. It is important that you understand the extent of this responsibility. If the action is unsuccessful and the Defendants get an order for the Claimant to pay the Defendant’s costs, you would be prima facie responsible for those costs.

It is important therefore that you always consider this when giving instructions. In reality because the protected party will generally have the benefit of a Conditional Fee Agreement backed by insurance, unless you have acted fraudulently or there is an abuse of the process of the court, no such order should be made or liability attach.

During the course of a claim as litigation friend you will be required to undertake a variety of tasks which may include (but not be limited to) the following:

• Making decisions in relation to the claim;
• Dealing with correspondence
• Approving and signing document
• Attending meetings with solicitors and barristers
• Ensuring the Claimant’s attendance at medical appointments for the purpose of the claim
• Explaining the process to the Claimant

Acting in the Best Interests of the Claimant

You will need to be in a position to carefully consider any offers of settlement made by the Defendants as it will be your decision as to acceptance of proposed damages if the claim is successful. That said, any settlement reached on behalf of a child or protected party will need to be approved by the court. This will involve a hearing at which as Litigation Friend you will be required to attend.

As stated above it is imperative that a Litigation Friend always acts in the best interests of the Claimant at all times. He or she should always whenever possible take into account that person’s wishes and feelings when making decisions relevant to the claim.

The Role of the Court and Ongoing Obligations

Once named in court proceedings as a Litigation Friend the court will regard you as being an “officer of the court” when conducting the litigation. You cannot be removed or substituted from your role as Litigation Friend in the proceedings without an order of the court. If during the litigation you are unable, for whatever reason, to continue in the role or no longer wish to do so, an application will need to be made to court to remove you from the proceedings and appoint an alternative suitably qualified Litigation Friend.

The court may at any time during the proceedings make an order directing that you may no longer act as the Litigation Friend and the court may appoint a new Litigation Friend to take your place. This would only happen if evidence were put before the court demonstrating that you were no longer able to fulfil your role as Litigation Friend.

If the child that you act for as a Litigation Friend is not a protected party (i.e. would be capable of managing their own affairs as an adult) then your appointment will automatically cease on the child’s 18th birthday.

If you act for a protected party (i.e. they are incapable of conducting the proceedings) then your appointment as Litigation Friend continues until it is ended by a court order; even though that person may become capable of managing their affairs at some point in the proceedings.