Having initially given her consent, C was appointed pursuant to CPR r 21.4 to act as the litigation friend of the defendant, who lacked capacity to litigate, in proceedings brought by the claimant. C, a litigant in person, subsequently applied under CPR r 21.7 to be discharged from that role, stating that she had developed mental health issues, could not cope with the stress of the litigation, could not properly discharge her duties and no longer consented to the role. The judge refused the application, having balanced a number of factors which he considered relevant, including the imminence of the trial date, and stating, inter alia, that a primary reason that the application failed was the defendant’s inability to put forward any person as a substitute. The defendant appealed, contending that the judge (i) had failed to give priority, or at least particular prominence, to the factors set out in CPR r 21.4(3) and (ii) had erred in that there was no requirement for the identification of a substitute before the appointment of a litigation friend could be terminated. Other grounds of appeal were adjourned pending the determination of those issues.
On the defendant’s appeal—
Held, appeal allowed. (1) Although not expressly set out in CPR r 21.4(3), consent was a fundamental and an irrevocable requirement for a litigation friend’s appointment, which continued throughout the appointment. The court would ordinarily require consent to be specifically addressed through form N235, although that was no longer expressly required by a practice direction. It would only be in very rare circumstances that the court would appoint a person without first considering that issue or being able to arrive at a view that consent was likely. The starting point, when considering whether the appointment of a litigation friend (legally qualified or not) ought to be terminated, was whether the conditions in CPR r 21.4(3) continued to be satisfied and whether the litigation friend continued to consent to act, those being mandatory requirements which the court ought to guard against weakening as that could deprive a protected party of what the rules deemed as necessary protection. If the conditions were no longer satisfied or the litigation friend no longer consented to act, it would require exceptional circumstances for the appointment to continue. There was no necessity that a substitute litigation friend be identified before an order could be made under CPR r 21.7 (paras 117, 128–131).
(2) Where the litigation friend was not a lawyer, and so had no professional obligations to the protected party or the court, there was very considerable, if not overwhelming force, in the observation that a litigation friend required to act on an unwilling basis would have an interest adverse to the protected party because his/her primary interest would be in bringing the litigation, and with it their unwanted involvement, to an end as speedily as possible regardless of whether that was in the protected party’s interests (para 117).
(3) In the present case, there had been no finding that the application of C, who was acting as a litigant in person, was anything other than bona fide. She no longer consented to act and doubted her ability “to comply with my duties to act in the defendant’s best interests and have concerns about my ability to make effective decisions on behalf of the defendant”. Having raised no issue about C’s mental health and its impacts, the judge ought to have considered whether there were any exceptional circumstances which could mean that it was proper to order her to remain in the role. In the absence of such circumstances the application ought to have succeeded. The application had additional merit, however, given the consequential risk to C’s health of making her continue, the lack of continuous legal representation, the complexity of the matter (the trial bundle being around 2,500 pages and the defendant’s lack of capacity likely to impact on the extent of the defence evidence), and the need to consider settlement/conduct generally. Further, the loss of a trial date alone could not ordinarily outweigh the fact that there was no longer consent or that the requirements for appointment as a litigation friend were no longer met, the obvious reason being that the trial might well not be a fair one if the protected party had their interests in the hands of a person who could not competently and/or fairly conduct the proceedings and/or no longer wished to do so (in which case a conflict of interest would arise as the litigation friend’s interest lay in the speedy conclusion of proceedings) and who faced the risk of consequential litigation brought on behalf of the protected party for perceived failings to act with appropriate care. Accordingly, the judge having fallen into serious error, the court could and ought to exercise its discretion to terminate C’s appointment (paras 129, 134, 136–142, 151).
Per curiam. It would be desirable for the Civil Procedure Rule Committee to consider clarification of the issue of consent in respect of an application under CPR r 21.6 given that the practice direction is no longer in force (and there may be doubt as to the court’s ability to require form N235 be signed) (para 152).
Theo Lester (directly instructed) for the defendant.
Amit Karia (instructed by Taylor Rose MW) for the claimant.