Being Appointed as Litigation Friend in UK

Litigation friends can help make decisions in court proceedings such as:

• Civil cases (excluding tribunals)
• Family cases
• Court of Protection cases

The friend who assists litigation in person would have to attend the court if there is to be a hearing. Even so, they would not be able to act as a lawyer for the other person.

Note: The court system in United Kingdom refers to an adult with a litigation friend as the ‘protected party’.

As a rule, there are two ways to become appointed as someone else’s litigation friend (further details below):

• Apply to be a litigation friend.
• Ask the court to appoint a litigation friend for one of the other people involved.

A court will check the suitability of litigation friends (e.g. willing and able). The appointment can take place when the case starts or at any other time during the actual court case.

The court may decide to ask the Official Solicitor to step in if no one suitable, willing, and able can act as litigation friend.

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Duties of a Litigation Friend

Your duty would be to ‘direct the proceedings’ for the person you are litigating for. So, besides making decisions in their best interest, and paying any costs ordered by the court, you must also:

• Do anything possible to inform them of the proceedings in the case and try to determine what their personal wishes and feelings are in relation to any developments.
• Discuss the decisions with their solicitor, seek legal advice from them, and provide instructions to them (in the best interests of the protected party).

Settlement Hearings in Civil Cases

The court will hold a hearing to approve any pay settlement related to the case. So, if there will be a settlement hearing, you must:

• Fill in and take form CFO 320 (for a child) along with the child’s original birth certificate (or
  certified copy).
• Fill in and take form CFO 320 PB (for an adult and the money will go in to a
  Court Funds Office account).

Note: MoJ produce an information sheet on the Court Funds Office special account for litigation friends acting on behalf of children. You can also read details on investment frameworks for children (or protected beneficiaries).

As a rule, your role as a litigation friend will end after the court case finishes. An exception will apply if an award of money will go to a Court Funds Office account.

In this case, you should remain as the contact for a child’s CFO account until (either):

• The child turns eighteen (18) years old.
• The court directs that the money has been paid out.

Note: There is a set process to replace a child’s litigation friend if they are unable to manage a Court Funds Office account.

If you are acting as the deputy of an adult awarded over £50,000 into a CFO account, you would need to manage the account on their behalf. But, the Court of Protection may agree that there is no need for a deputy.

Claiming Expenses in Civil Cases

You may have expenses to pay while acting as litigation friend. If so, you can apply to the court to get them paid back. Civil case expenses can include a court costs insurance policy premium (or interest on a loan taken out to pay for it).

Send a letter to the judge in charge of the case. The letter, and receipts, should show the amount you spent and the dates you spent it. The court would check and confirm whether the expenses are ‘reasonable’.

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Who Can Be a Litigation Friend

The court can choose to appoint anyone to be someone’s litigation friend, such as:

• A parent, guardian, family member, or trusted friend.
• A solicitor, or a professional advocate (e.g. an Independent Mental Capacity Advocate).
• A Court of Protection deputy.
• Someone with a lasting (LPA) or enduring (EPA)
  power of attorney.

 

Suitability of Litigation Friend

The court will check whether the person acting as litigation friend is suitable for the role. They will want to make sure their:

• Interests do not conflict with those of the ‘protected party’.
• Decisions will be made in relation to the case with fairness and competency.

 

If No One is Suitable to be Litigation Friend

The court will appoint the Official Solicitor to act as a litigation friend if nobody else is suitable and willing, (or):

• If money is available to pay for the cost of using the Official Solicitor (e.g. from
  legal aid).
• If the doctor, or another medical professional (e.g. a psychiatrist) of the protected person, confirms they lack capacity to manage their own case (unless it is a child).

The court appoints the Official Solicitor at the appropriate time (providing they agree to it). You can contact their office if to query their involvement in a case:

The Official Solicitor
Victory House
30-34 Kingsway
London
WC2B 6EX

Telephone: 020 3681 2750 (civil cases)
Telephone: 020 3681 2754 (family cases – private law)
Telephone: 020 3681 2755 (family cases – public law)
Telephone: 020 3681 2751
Telephone: 020 7930 4832 (Court of Protection cases)
Monday to Friday: 9am to 5pm
Information on call charges.

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Application for Litigation Friend

You can apply to be a litigation friend for a child or an adult who lacks mental capacity, by (either):

• Completing a certificate of suitability (for people who are not deputies).
• Providing a copy of the court order that appointed you to
  become a deputy (if it grants permission to act as litigation friend).

You must ‘file’ the court order or the certificate of suitability by sending it to the court. Doing so would allow you to act on behalf of the ‘protected person’.

If the person has a solicitor, they would complete this part of the process. But, you can do it yourself if a solicitor has yet to be appointed. The
courts section explains how to contact a court for delivering documents and how to find legal representation.

Deputies Acting in Civil Cases

The deputy of a claimant (person bringing a case to court), with a court order giving permission to be a litigation friend, needs to file the court order with the claim form used to start the court case.

Certificate of Suitability

You can download the relevant application form to apply for a certificate of suitability. Use:

• Form N235 for the civil court
• Form FP9 for the family court
• Form COP22 for the Court of Protection

The next step is to ‘serve’ (deliver in person) a completed copy of the relevant form to:

• The parent, guardian, or carer (if applying to be a child’s litigation friend).
• The deputy, attorney with a
  lasting power of attorney or
  enduring power of attorney, or carer of the adult.
• The adult for whom you are applying to get a litigation friend appointed.

Note: The certificate of suitability form should explain why they need someone to make decisions about the case on their behalf if applying to act for an adult.

Certificate of Service

After serving the certificate of suitability, you should download and complete the relevant certificate of service, using:

• Form N215 for a civil case.
• Form FP6 for a family case.
• Form COP20A if serving the other person or Form COP20B for someone else for a Court of Protection case.

Note: You should send or deliver the certificate of suitability and the certificate of service to the court together (at the same time). Deliver them with the claim form if applying to be litigation friend for the person making the claim in a civil case.

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Asking the Court to Appoint a Litigation Friend

At any time, anyone who is involved with the case can make an application to the court to get a litigation friend appointed. To apply to the court, you would need to download and complete the relevant form, using:

• Form N244 for civil courts
• Form FP2 for family courts
• Form COP9 for the Court of Protection

It will be necessary to provide some evidence that the person you are asking the court to appoint is suitable and willing, and:

• Agrees to take on the role of litigation friend.
• Will be able to carry out the duties.

The next step would be to ‘serve’ (deliver in person) a completed copy of the relevant form to:

• The parent, guardian, or carer (if applying to be a child’s litigation friend).
• The deputy, attorney with a
  lasting power of attorney or
  enduring power of attorney, or carer of the adult.
• The adult for whom you are applying to get a litigation friend appointed.

Certificate of Service

After serving the certificate of suitability, you should download and complete the relevant certificate of service, using:

• Form N215 for a civil case.
• Form FP6 for a family case.
• Form COP20A if serving the other person or Form COP20B for someone else for a Court of Protection case.

Note: You should send or deliver the certificate of suitability and the certificate of service to the court together (at the same time).

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When a Litigation Friend Appointment Ends

As a rule, you would stop being a litigation friend when:

• The case has finished (unless it’s for a child and they had a settlement granted to them).
• The child reaches eighteen (18) years old.
• The adult lacking mental capacity either recovers or gets sufficient mental capacity.
• Someone (either you or another person) makes an application to the court to replace a child’s litigation friend.

Note: A court can replace someone appointed as litigation friend if they fail to carry out their duties properly.

Litigation Friends for Children

You may be managing a Court Funds Office account on behalf of a child, even after the case gets settled. In this case, they would receive a letter from the Court Funds Office explaining how they can get court funds money after turning 18.

A child may turn eighteen during the court case. If so, they would need to write a statement notifying the court, and anyone else involved in the case, that:

• They have become 18 years old.
• They stopped using a litigation friend.
• They will, or they will not, carry on with the legal case (and provide an address to receive documents).

Note: You would need to file the statement with the court and ‘serve’ a copy to everyone with an involvement in the case.

If an Adult Recovers (or gets mental capacity)

The litigation friend of someone who recovers mental capacity can apply for a court order to end their role. The person can also apply to the court themselves. But, whoever applies to the court must:

• Include some medical evidence that the person recovered mental capacity.
• Include any relevant Court of Protection orders or declarations.

If so, they would also need to write a statement notifying the court, and anyone else involved in the case, that:

• They stopped using a litigation friend.
• They will, or they will not, carry on with the legal case (and provide an address to receive documents).

Note: You would need to file the statement with the court and ‘serve’ a copy to everyone with an involvement in the case.

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