Sometimes in family litigation, a party to the proceedings is deemed not to have capacity to conduct the litigation themselves. Such a party is called a ‘protected party’. In these cases, it might be appropriate for a ‘litigation friend’ to be appointed to carry out the litigation on their behalf.
Having a ‘litigation friend’ allows vulnerable individuals to access the justice system and the legal remedies that are available. As a litigation friend steps in to the shoes of the protected party, they take on a large amount of responsibility. So who can be appointed, and how do they go about doing this?
Who can be appointed a litigation friend?
The relevant authority is Part 15 of the Family Procedure Rules 2010. There are two groups of people who can be appointed as litigation friends. The first is a person with authority as a Deputy to conduct the proceedings on behalf of the protected party. A Deputy is someone who has been appointed as such by the Court of Protection under the Mental Capacity Act 2005. If there is no appointed Deputy, then an appropriate adult can put themselves forward as a litigation friend. This person will need to meet certain criteria, namely:
- They can fairly and competently conduct proceedings on behalf of the protected party
- They have no interest adverse to that of the protected party, and
- They undertake to pay any costs which the protected party may be ordered to pay in relation to the proceedings subject to any repayment they might be entitled to.
If there is no order appointing a litigation friend, then the procedure will vary depending on whether the person wishing to be appointed is a Deputy or another person. If the person wishing to be appointed is a Deputy, they must file with the court an official copy of the order, declaration or other document which gives them authority to be appointed. If another person wishes to be appointed, they must file with the court a certificate of suitability stating that they satisfy the above criteria. In either case, the documents must be filed with the court at the point when the person wishing to be appointed first takes a step in the proceedings on behalf of the protected party.
It is also possible for the court to make an order appointing someone as a litigation friend. This can be done by the court’s own initiative, or on application by either someone wishing to be appointed as a litigation friend or a party to the proceedings. The court is also able to direct that someone should make an application to be appointed as a litigation friend.
What can Blake Morgan do for you?
If you need advice regarding a family law case which you think necessitates the appointment of a litigation friend, contact one of the expert lawyers in the Family Law team.