The background to this post is the case of George Major (a protected party, by his litigation friend Katherine Gee) v Kalaivani Jaipal Kirishana 2023 which I found out about thanks to Alice Irving's article How Not To Talk About Capacity And Mental Illness.
If you want to find out more about when someone lacks capacity to be a party to legal proceedings and what a Litigation Friend is then it is worth reading the above judgment in full and the Law Society Guidance - Working With Clients Who May Lack Mental Capacity and the General Medical Council web site's guidance on mental capacity.
The starting point in the context of civil legal proceedings is that the Civil Procedure Rules which provide that if, during proceedings, a party lacks capacity to continue to conduct proceedings, under rule 21.3(2) of the Civil Procedure Rules (CPR), no party may take any further step in the proceedings without the permission of the court until the protected party has a litigation friend.
There are many practical problems in getting a court to recognise that a party lacks capacity which I will deal with another time but once the court has recognised that a party lacks litigation capacity the proceedings are effectively frozen and no steps can taken to progress them until a Litigation Friend has been appointed to assist them. More information about the role of the Litigation Friend can be found at Gov.UK's section on Litigation Friends and the information What Is The Role Of A Litigation Friend? on the website of Edwards Duthie Shamesh Solicitors. In summary a Litigation Friend's role is to assist the party who lacks capacity to conduct the litigation. This will usually be limited to providing instructions to a solicitor acting for the person who lacks capacity. Serious problems can arise though )as in the George Major Case) if there is no solicitor acting, for instance because Legal Aid is not available and the incapacitated person cannot afford to pay private fees.
Where someone has been assessed as lacking capacity to be a party to proceedings and there is no one able or willing to act as Litigation Friend the Official Solicitor can be appointed in that role. For more information about the role of the Official see the post Who Is The Official Solicitor And When Should They Be Added As A Party To Proceedings? by Nicole Subrovksa at Anthony Gold Solicitors. The Official Solicitor will only agree to act as Litigation Friend as a last resort when there is nobody else to do so. This leads to family members and friends being asked and perhaps pressured to act as Litigation Friend which they may feel obliged to do out of concern for the incapacitated person. For the reasons set out below my advice would be that they should not agree to do so as they have little or nothing to gain save perhaps for a feeling of having done the right thing and a lot to lose. They may infact be embarking on a traumatic experience which they will regret for a very long time as I am sure Ms Cowell who agreed to act as Litigation Friend for Mr Major in this case will do.
The reasons not to act as Litigation Friend include:
- You cannot expect to receive any payment for the very large amount of time and effort you are likely to have to devote to the case.
- Where a solicitor is acting for the incapacitated party you will have to try and follow what it is you are being asked to do to and to provide instructions about issues you barely understand without being trained in the subject matter so as to be able to understand the "legalese" in which the solicitor will inevitably (and despite best efforts not to) communicate with you.
- Where no solicitor is acting you may end up effectively having to act as solicitor yourself which is what Ms Cowell ending up being asked to do in this case.
- You are likely to be treated in a very hostile manner indeed by the opponent and their legal representatives with no appreciation for the role you have taken on. In this case the Claimant's solicitor showed a serious lack of courtesy towards Ms Cowell and threatened her with having to pay legal costs herself. This caused her considerable distress.
- You are likely to be treated in a similar manner by judges who are used to being highly critical to the point of bullying towards the lawyers in their courts. Judges are often unable to refrain from this mode of behaviour when dealing with other people less deserving of their hostility such as Litigation Friends.
- You cannot expect any support from the Court staff. They are not trained or expected to do more to interact with those than process applications made on prescribed court forms and send out Notices and Orders. They are so badly underfunded that there is next to no means of communicating with them. In this case for instance the County Court Judge rebuked Ms Cowell for writing to court staff which was considered to be something likely to give rise to administrative difficulties.
- You may face difficulty in being allowed to stop being Litigation Friend as Ms Cowell did in this case even after telling the Court how she was unable to carry on in the role.
- You will be at risk of suffering a level of stress which will damage your own health.
The judgment of the Court of Appeal in this case and the comments made should reduce the number of waking nightmares of the kind experienced by Ms Cowell in this case. However, it is likely to be a long time until all solicitors, barristers and lower court judges are aware of the issues arising from the case and the Court Service is able to provide Litigation Friends with the support that they are entitled to. Until those changes are in place I will find it very difficult to advise anyone to agree to act as Litigation Friend especially where the incapacitated party is expected to fund their case privately without Legal Aid. Even then I would have to advise that it is likely to be a thankless task which they will regret taking on.
If nobody else agrees to act as Litigation Friend then either the Official Solicitor will need to be act or the court case will be derailed because no further steps can be taken. My view at the moment is that the Official Solicitor is best placed to take on this role. Their staff are paid for their work and trained on how to do it.
Another important point to note for those dealing with incapacitated parties who are not eligible for Legal Ad is that the Official Solicitor is entitled to refuse to act unless the other side undertakes to pay the Official Solicitor's costs. The Official Solicitor is publicly funded. The costs referred to here are the costs of the solicitor representing the incapacitated party. This means that the opponent is faced with having to pay their own legal costs and those of the incapacitated party. If someone is considering acting as Litigation Friend then they might want to make their agreement conditional on a similar undertaking being given.
I do not want to be seen to be encouraging people who would otherwise be happy to assist the courts and their incapacitated friends or relatives by acting as Litigation Friend to be difficult or obstruct the progress of court cases. I do want to point out the reasons for not doing so and for avoiding what Ms Cowell had to go through in this case. I am aware that staff at the Official Solicitor's Office are struggling to deal with the huge demand for their assistance and may not thank me adding to that demand. I am however confident that knowing what they know about the process they would not want to act as Litigation Friends in a personal capacity themselves or recommend doing so to anyone else in good conscience.