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Disputes over the identity of the Litigation Friend

The choice of litigation friend for a vulnerable adult can sometimes be contentious.

Where the Relevant Person’s Representative (“RPR”) is a professional, it is often easy for all parties to agree to the professional also acting as litigation friend.

If, however, the RPR or the proposed litigation friend is a family member or someone associated with the family, what happens if the parties disagree about the proposed appointment?

I once acted in a case for “P”, taking initial instructions from a proposed (informal) litigation friend, who had acted as P’s RPR in the same proceedings, but was also a party in their own right.  Before the hearing to appoint the litigation friend we believed that the majority of the other parties agreed with the proposed appointment, but on the morning of the hearing the Local Authority applicant changed its mind (for understandable reasons) and asked for the Official Solicitor (“OS”) to be apppointed.

There was clear evidence that it was in P’s best interests to have final declarations made on that day, but the procedure of the OS accepting the case would have caused a delay.  The Judge therefore agreed to appoint the litigation friend that we had originally proposed to give effect to the final declarations.

In the same case, an Independent Mental Capacity Advocate was appointed as litigation friend to another party who lacked capacity – indicating another shift towards the appointment of alternative litigation friends.

The decision made by the Judge in this case is similar to that made in an unreported case (WCC v AB and SB) in 2012, where the need to provide representation for AB could not wait an additional 10 weeks for the OS to be appointed. Despite opposition from the Local Authority, AB’s aunt was appointed as litigation friend – again confirming that the OS should really be the litigation friend of last resort.

There has been some reduction in the delay caused by the waiting list of the Official Solicitor, but as welfare cases are set to increase, more needs to be done.

Given the willingness of some Independent Mental Capacity Advocates to act as a litigation friend, more could be done to tap into that as a national service. Not all organisations providing advocacy and Paid Representative services have caught up, but there is talk of more guidance and support being provided to assist those organisations in allowing their Paid Representatives to act in this way. This is welcome.

My suggestion is that perhaps one or two advocates from each regional area where the Court of Protection sits could take on the role of a Paid Representiatve litigation friend.  This might speed matters up considerably and is generally in the best interests of everyone involved in these cases, which are often complicated, time consuming and difficult.

For more information about who may act as a Litigation Friend, please contact me for a copy of our information sheet.