Understanding Litigation Friends
A ‘litigation friend’ is someone who can fairly and competently conduct proceedings on behalf of a child, or for a party who lacks legal capacity (a protected party). An application to appoint a litigation friend may be made where the court has not already made such an appointment and a deputy has not been appointed by the Court of Protection.
This provision is useful in most avenues of litigation. It is a relatively straight-forward process and an individual with no bias against the protected person can self-certify their suitability. This is of course subject to the court’s discretion to “black ball” or terminate such an appointment, or to appoint a new litigation friend in substitution for an existing one.
A party may also apply to the court to use its discretion to remove and replace a litigation friend, if there is sufficient evidence. The defendant executors in the estate of Lord Parkinson made such an application in an Inheritance (Provision for Family and Dependants) Act 1975 claim for reasonable maintenance needs. This was brought for, and on behalf of, one of his daughters, who is 34 years of age and suffers from reasonably severe physical and mental disabilities.
The failed application was made by the executors to replace the claimant’s litigation friend, in this case, her mother. However the alleged bad blood between the litigation friend and the family of the deceased, nor the delays and problems caused by her lack of a solicitor (a common problem in a post legal-aid reality), were not considered by the court to diminish her ability to fairly and competently conduct the proceedings on the claimant’s behalf.
The executors claimed that the litigation friend had an interest (implied as being personal and financial) that was adverse to the interests of her daughter, the claimant.
Master Clark found that “In the absence of provision by the deceased, the only resources which are available to the claimant are state benefits (which are insufficient to maintain her) and her mother’s [the litigation friend’s] resources. To the extent that provision is made from the deceased’s estate, this will reduce the demands made on [the litigation friend’s] financial resources and, possibly the time that she spends caring for the claimant. Her interests and those of the claimant are to that extent coincident. There is no evidence to support the submission that [the litigation friend] would seek to spend provision received from the deceased’s estate otherwise than for the claimant’s benefit; although such provision might reduce the amount of her own resources spent on the claimant. I therefore reject the suggestion that she has an interest adverse to the claimant.”
In short, there is case law in place that demonstrates that in most cases exterior factors are not relevant in the context of potential adverse interests. This case was no exception.
The bad news for the executors did not end here. By making this application the executors abandoned any notion of neutrality in the main Inheritance (Provision for Family and Dependants) Act 1975 proceedings and thus are likely to reap the adverse costs consequences for adopting such a position.