Appointing a litigation friend – is the Official Solicitor always the right choice?

When an individual lacks the mental capacity to take part in welfare proceedings in the Court of Protection, a litigation friend may be appointed to represent them. They will either instruct a solicitor to act on behalf of the person who lacks capacity, or they can talk directly to the Judge to provide the views of the person they are assisting.

A litigation friend can be a family member, an advocate or the Official Solicitor – the litigation friend of last resort, holding a public office and funded by the Government.

If the individual (known as “P” in the Court of Protection) is joined as a party to the proceedings, a litigation friend must be appointed before any significant orders are made about them.

The Official Solicitor as litigation friend

In the early days of welfare litigation in the Court, the Official Solicitor (“OS“) would be approached without a second thought and initial directions orders came back from the Court of Protection on a regular basis joining P as a party and inviting the Official Solicitor to act as litigation friend. I found this most frustrating when making applications on behalf of P where a different person, perhaps a family member, had already been proposed and in some cases agreed by the other parties as someone who would be suitable to act as litigation friend.

Because of the Court’s reliance on the OS and the increase in welfare applications, the OS has been overwhelmed by applications to act.  So in February 2012 the OS set out strict criteria for accepting cases and until very recently, had a pretty lengthy waiting list. A case I was involved in was on the list from mid October until mid February. The proceedings continued without P being represented, but because of the bad feeling between the other parties, nothing much was achieved until the OS was able to consent to act and to appoint a case worker.

The OS has recently made some extraordinary efforts to ensure that the cases are allocated more quickly and in a letter to barrister’s chambers 39 Essex Street, the current Official Solicitor, Alistair Pitblado, set out the current situation – found here.

Appointing someone else as litigation friend

The Court of Protection judges are beginning to be more open to the idea of alternative litigation friends being appointed. Other representatives may already have been appointed for P so could one of these be appointed as litigation friend?

For example, in deprivation of liberty cases a Relevant Persons’ Representative (“RPR“) is appointed to assist an individual in understanding, reviewing or challenging the decision to place them in a particular care home or hospital.  If there is no family member available to take on this role, or it is not appropriate for a family member to act in that way, then an independent professional RPR must be appointed. This is in addition to any Independent Mental Capacity Advocate who may be asked to provide a Section 39D report to set out the ascertainable wishes and feelings of the person deprived.

In a very brief and unreported case I successfully argued that a RPR should be appointed as litigation friend, but the 2011 case of AB v LCC considered the issue in more detail. Mr Justice Mostyn concluded that:

There is no impediment to a RPR acting as a litigation friend to P in a s21A application provided that: (i) the RPR is not already a party to the proceedings; (ii) the RPR fulfils the COP rule 140 conditions (that he can fairly and competently conduct proceedings on behalf of P, and has no interests adverse to P’s); (iii) the RPR can and is willing to act as litigation friend in P’s best interests; and (iv) the procedure as set out in COP rule 143 is complied with.’

I welcome this change in attitude by the courts, which allows cases to be heard much faster and for the vulnerable person to be represented by someone they are familiar with and who knows them well.

For more information about who may act as a litigation friend, please read our client information sheet or contact me.

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