People who have a cognitive impairment, such as a brain injury, will sometimes need to become involved in court proceedings, for example to pursue a personal injury claim, or in proceedings in the Court of Protection.
When a person lacks mental capacity to instruct legal representatives and take part in the court proceedings, the court can appoint another person, known as a “litigation friend” to make decisions about the court case on their behalf.
In order to be appointed as a litigation friend, the person must confirm that they are able to make decisions about the court case in a fair and competent manner, and must not have any interests adverse to the person on whose behalf they are acting as litigation friend. A litigation friend is an essential part of the court process, ensuring that the voices of the individuals who do not have capacity to conduct their own court cases are heard before the court.
Often this role of litigation friend is taken on by a member of the person’s family, or a friend, or an advocate (sometimes known as an IMCA). However, it may be that, for whatever reason, there is no one suitable who is willing or able to conduct court proceedings on behalf of a person who lacks capacity. In those circumstances, in order to preserve access to justice for vulnerable members of society, the Official Solicitor can be appointed to act as their litigation friend.
The Official Solicitor to the Senior Courts, known as the Official Solicitor, acts as litigation friend of last resort, and in certain cases as solicitor, for children and for adults who lack mental capacity to manage their own court cases. The Official Solicitor is appointed as a person’s litigation friend by the court.
The Official Solicitor is an individual, appointed by the Lord Chancellor. At present, the position of Official Solicitor is held by Sarah Castle, and she has a team of lawyers and case workers who are assigned to particular cases, based in an office in London. The Official Solicitor can act directly as solicitor for an individual in certain circumstances, but in most cases where she is acting as litigation friend she appoints a firm of solicitors to act on the individual’s behalf. That firm of solicitors will advise the Official Solicitor (or the case manager acting on her behalf) on the legal points of the case, and the Official Solicitor (or the case manager) then provides instructions to the firm of solicitors on behalf of the individual who lacks capacity. Notably, the Official Solicitor will only make decisions on behalf of that individual in relation to the specific issues before the court, and will not be involved in any other decisions in that individual’s life.
Importantly, the Official Solicitor will only act as someone’s litigation friend if three criteria are met, namely: (1) there no one else suitable and willing to be their litigation friend, (2) it has been confirmed that the person lacks the mental capacity to manage their own court case, and (3) if there is funding available to pay for the person’s legal representation, whether via Legal Aid, from the person’s own resources or some other means.
Produced by Saoirse de Bont, Public Law and Human Rights Department, Irwin Mitchell
Saoirse is an associate solicitor in the Public Law & Human Rights team in Irwin Mitchell, specialising in Court of Protection and judicial review cases. She regularly represents vulnerable adults and their families in Court of Protection matters, particularly in relation to disputes regarding capacity and best interests, acting on behalf of the Official Solicitor, Independent Mental Capacity Advocates (IMCAs) and family members. She also helps people to challenge decisions made by public bodies, including local authorities and the NHS.
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