Settlement on behalf of Children Tom Stoate, Garden Court Chambers toms@gclaw.co.uk May 2020 @gardencourtlaw
Rules The practice and procedure for civil claims brought children is governed by CPR 21 and Practice Direction 21 . These rules aim to protect children involved in litigation (including from “the negligence of advisers”!). In civil litigation a child is a person under the age of 18 (CPR 21.1(2)) – note that the term “minor” is no longer used. In general: • A claim by a child will usually be conducted on their behalf by a litigation friend; • No litigation steps can be taken until the child has a litigation friend in place; • The court must approve the settlement of any claim to which a child is a party; • The court directs how money any recovered on behalf of a child, or paid into court, is dealt with. @gardencourtlaw
Protected parties A child can also be a protected party under CPR 21. A protected party is a person who lacks capacity within the meaning of the Mental Capacity Act (MCA) 2005, section 2(1) of which states: “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain .” The Court of Protection may appoint a deputy to make decisions on behalf of a protected party under section 16(2) of the MCA 2005. @gardencourtlaw
Litigation friends Unless the court orders otherwise, until a litigation friend has been appointed, any step taken by a child in litigation will have no effect. In practice, a parent, guardian or other relative will usually be a child’s litigation friend. The court may authorise a child to conduct proceedings without a litigation friend (CPR 21.2(3)); but the court will do so only if it is satisfied that the child has sufficient maturity and understanding: see Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7. Note that if the child is also a protected party, a litigation friend must always be appointed: CPR 21.2(1). @gardencourtlaw
Who can act as a Litigation Friend? Under CPR 21.4(3) , a litigation friend must: • Be able to conduct proceedings “fairly and competently” on behalf of the child (and to take all decisions and steps in the claim for the benefit of the child); Have no adverse interest to that of the child; and • • Undertake to pay any costs which the child, if a claimant, may be ordered to pay in relation to the proceedings. If no one else is able or willing to act on behalf of the child, the Official Solicitor (OS) will do so. The OS may also act as personal representative of the estate of a deceased person or trustee of a trust (note that if the OS is appointed, provision must be made for the payment of her charges: PD 21.3.4). @gardencourtlaw
Who can act as a Litigation Friend? In R (Raqeeb) v Barts Health NHS Trust [2019] EWHC 2976 (Admin), MacDonald J summarised the principles on CPR 21 from the authorities. A litigation friend must: Be able fairly and competently to conduct proceedings – which includes acting under • proper legal advice, but also being able to exercise independent judgment on any such advice. A litigation friend who does not act on proper advice may be removed. • Have no interest adverse to that of the child – there is no principle that a family member cannot act as a litigation friend, so long as they can take a balanced and even-handed approach to the relevant issues; nor it there authority to suggest that religious beliefs per se disqualify a person acting as a litigation friend. @gardencourtlaw
Procedure for appointing a Litigation Friend Under CPR 21, there are two alternative procedures for appointing a litigation friend: • Straightforward filing at court ( CPR 21.5 ); or • By order of the court ( CPR 21.6 ) – which is necessary where a party to the proceedings other than the child seeks to have a litigation friend appointed, or an existing litigation friend is to be replaced. @gardencourtlaw
Appointment without court order The proposed litigation friend must prepare and serve a certificate of suitability (Form N235), certifying that they satisfy the conditions specified in CPR 21.4(3). Pursuant to PD 21.2.2 the person seeking appointment must state: That they consent to act; • That they know or believe the claimant [is a child / lacks capacity to conduct the • proceedings]; • In the case of a child who is also a protected party, the grounds of their belief (attaching any relevant medical opinion or expert opinion); That they can fairly and competently conduct proceedings on behalf of the child and have no • interest adverse to that of the child; and • Where the party is a claimant, that they undertaking to pay any costs which the party may be ordered to pay in relation to the proceedings (subject to any right they may have to be repaid from the party’s assets). @gardencourtlaw
Without court order (cont.) The certificate must be served on every person on whom the claim form should be served under CPR 6.13. This means: • If the child is not a protected party, it must be served on one of the child’s parents or guardians (or, if there is no parent or guardian, an adult with whom the child resides or in whose care the child is): CPR 6.13(1); If the child is also a protected party, it must be served on one of: • The attorney under a registered enduring power of attorney; o The donee of a lasting power of attorney (LPA); o The deputy appointed by the Court of Protection; or, o If there is no such person, an adult with whom the protected party resides or in whose o care the protected party is: CPR 6.13(2). @gardencourtlaw
Without court order (cont.) • The certificate of suitability (N235) must also be served on any other person upon whom the court has ordered the claim form may be served: CPR 6.13(4). • It must then be filed at court, together with a certificate of service: CPR 6.29. • Where the child is a claimant, the certificate is filed at the time the claim is made : CPR 21.5(3). @gardencourtlaw
Appointment by court order Any party to the proceedings or person who wishes to be a particular party’s litigation friend may apply for an order under the CPR 23 procedure. The court may appoint the person proposed in the application or may appoint any other person who complies with the conditions set out in CPR 21.4(3) – see e.g. Jamous v Mercouris [2019] EWHC 1746 (QB). The application notice should be filed when the child issues proceedings or takes their first step in the proceedings. Pursuant to PD 21.3.3, the applicant must submit evidence to satisfy the court that the proposed litigation friend: • Consents to act; Can fairly and competently conduct proceedings on behalf of the child; • Has no interest adverse to that of the child; and • Where the child is a claimant, undertakes to pay any costs which the party may be ordered to • pay in relation to the proceedings (subject to any right they may have to be repaid from the assets of the party). @gardencourtlaw
Appointment by court order (cont.) The application must be served on: • Every person on whom the claim form must be served under CPR 6.13 and the protected party (where the child is also a protected party), unless the court orders otherwise: CPR 21.8(1) and (2) @gardencourtlaw
The end of a Litigation Friend’s appointment The litigation friend’s appointment automatically ends when a child reaches 18, unless the child is also a protected party (in which case appointment ends by court order: CPR 21.9). The court also has a wide discretion to terminate the appointment of a litigation friend , or to substitute a litigation friend: CPR 21.7 . For example: • Where there is a conflict of interest (e.g. Zarbafi v Zarbafi & ors [2014] EWCA Civ 1267); or • Where the OS could no longer act because the anticipated source of funding for his (now her) costs had ceased to be available (e.g. Bradbury & ors v Paterson & ors [2014] EWHC 3992 (QB) – note that the court in that case held that CPR 21.7 did not restrict the power to terminate a litigation friend’s appointment, and that there were no further requirements after doing so (for example, to identify a substitute)). Note: the consent of any person to act as a litigation friend is not irrevocable. @gardencourtlaw
End of appointment (cont.) A litigation friend will have extensive dealings with a parent or person responsible for the child claimant or protected party. The court should therefore be reluctant to impose a litigation friend on the parent or responsible person, and should only do so if there is no other viable candidate: see Keays v Executors of the Late Parkinson [2018] EWHC 1006 (Ch) If a claimant does not have capacity to litigate at the outset of the claim, the litigation friend continues to have authority to act until they are removed by court order: CPR 21.9(2); see Fletcher v Keatley [2017] EWCA Civ 1540 Note that the court may not terminate the appointment of a litigation friend retrospectively ab initio : see Davila v Davila [2016] EWHC B14 (Ch) @gardencourtlaw
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