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Lasting Powers of Attorney and Court of Protection Deputyships

With the help of Solicitors from Irwin Mitchell’s Serious Injury team we look at the role of a Litigation Friend.

What is a Litigation Friend?

A Litigation Friend is someone who brings a claim on behalf of an injured person where the injured person is considered unable to conduct the claim themselves.

Who needs a Litigation Friend?

By law, children under the age of 18 and those who are considered to be a “Protected Party” must have a Litigation Friend unless the court orders otherwise.

For the purpose of personal injury litigation, a Protected Party is someone who lacks capacity to conduct their own court proceedings. A person will be deemed to lack capacity under the Mental Capacity Act 2005 if at the material time they are unable to make a decision for themselves in relation to the conduct of proceedings because of an impairment of/or a disturbance in the functioning of the mind or brain. Therefore, an individual who has suffered a traumatic brain injury may well fall into this definition.

As such, a child who has sustained a traumatic brain injury will need a Litigation Friend at least until they reach the age of 18. Prior to turning 18, they may require a formal capacity assessment to determine whether they are able to take over conduct of their claim. If the conclusion of such assessment is that the child lacks capacity then they will be considered a Protected Party and will continue to require a Litigation Friend.

Who can be a Litigation Friend?

Anyone can be a Litigation Friend as long as they can fairly and competently conduct proceedings on behalf of the injured person’s behalf. Often this will be a family member or friend who will act as a Litigation Friend. However, it is also possible for a professional such as a guardian or social worker to be a Litigation Friend.

There are some circumstances where an individual is unable to assume the role of a Litigation Friend. For example, if a child was injured in a road traffic collision whilst a passenger in a car driven by a parent, that parent could not act as the child’s Litigation Friend. This is because they may become a defendant in the proceedings which would give rise to a conflict of interest.

If there is no one suitable and/or willing who can act as a Litigation Friend, then the Official Solicitor may be able to act as the Litigation Friend. The Official Solicitor is a government body that helps children and people who lack mental capacity with legal issues, and may be able to act as the Litigation Friend. This is usually considered to be a last resort.

What does a Litigation Friend have to do?

A Litigation Friend’s main role is to assist the injured person in conducting their claim. As such, a Litigation Friend must always have the injured person’s best interests in mind when making decisions about the case.

A Litigation Friend may need to:

  • Meet and speak with solicitors and take legal advice when needed
  • Provide instructions to solicitors in relation to the claim
  • Deal with correspondence relating to the claim
  • Approve and sign legal documents
  • Ensure that the injured person attends medical and other appointments for the purpose of the claim
  • Attend court hearings
  • Make decisions about the case, such as whether to accept an offer made to settle the case.

A Litigation Friend also has to keep the injured person updated in relation to the claim to the extent that the injured person is able to understand what is going on with the claim and, as far as possible, take the injured person’s wishes into account when making decisions.

Acting as a Litigation Friend is a big responsibility. Bringing a personal injury claim for life-changing injuries such as brain injury can be stressful and emotional both for Litigation Friends and the individuals they represent. The process can take several years and therefore anyone considering being a Litigation Friend should think carefully about whether they are able to take on this responsibility.

Becoming a Litigation Friend

To bring a claim on behalf of an injured child or Protected Party, the person seeking to become the Litigation Friend will need to complete a Certificate of Suitability. This document sets out the reason why the injured person requires a Litigation Friend and why the person wanting to be appointed is suitable to be a Litigation Friend. Once complete, the Certificate will need to be filed with the Court who will confirm whether the person applying is suitable for the role.

The claims process

Generally speaking, the claims process is not affected by the appointment of a Litigation Friend and therefore the claim will proceed in the same way that it would have if the child or Protected Party were able to represent themselves.

However, one notable difference is that any settlement accepted by the Litigation Friend must also be approved by the Court. The reason for this is to ensure that any settlement reached on behalf of the child or Protected Party is a fair one and in their best interests. Additionally, the Court will also decide where the compensation is to be paid, again ensuring that the injured person’s interests are protected.

When does the role of Litigation Friend come to an end?

There are a number of circumstances where the need for a Litigation Friend is no longer required and therefore the role of a Litigation Friend will come to an end. Such circumstances include:

  • When a child reaches 18 they will no longer need a Litigation Friend provided they are considered to have the mental capacity to conduct their claim.
  • Where a Protected Party over the age of 18 is considered to regain mental capacity to conduct their claim.
  • When the claim comes to an end.

If a Litigation Friend is no longer able to meet their duties and obligations during the lifetime of the claim, then an application to be removed and replaced can be made to the Court. In making the application the Litigation Friend will need to provide an explanation as to why the appointment needs to be ended and good reason as to why the person suggested should be appointed in their place.

This article was produced by Amey Welch and Jodee Mayer

Amey and Jodee are Solicitors in Irwin Mitchell’s London Serious Injury team. They have both been representing clients who have suffered life-changing injuries for many years and between them have specialist interests in traumatic brain injury, spinal cord injury and polytrauma.

About Irwin Mitchell

Brain Injury Group member firm Irwin Mitchell are a national law firm whose solicitors work hard to make things easier for their clients and their family. Over the past 2 years they have helped clients recover more than £1 billion in compensation, but this is only part of the story, their solicitors also help clients access the rehabilitation, medical care and support needed to achieve the best recovery possible.

How can Brain Injury Group help?

Brain Injury Group is a network of approved personal injury solicitors with brain injury expertise. Moreover, our member firms have the complex injury experience to get the best possible rehabilitation and compensation for brain injuries.

Brain injury rehabilitation is important; to us, to our members, to you and towards getting the best outcome. We can help get you that best outcome. Get in touch to find out more from our brain injury experts.

Contact us – to get in touch you can either:

  1. Call us on 0800 612 9660 or 03303 112541
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  4. Find a specialist brain injury solicitor near to you
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