Where a child or vulnerable adult has been harmed, it is necessary to consider who will represent them in any compensation claim brought on their behalf.
In law, children and those who are deemed to lack capacity (known as protected parties) must be represented in their claims by a suitable and competent adult.
These adults are known as “litigation friends”.
What is a Litigation Friend?
A litigation friend acts on behalf of claimants, who are either children (those under the age of 18) and or those who lack mental capacity in bringing their personal injury claims. This means they make all the important decisions in the claim on behalf of the person who has been harmed.
Who can be a Litigation Friend?
A litigation friend can be a parent, family member, friend or a professional (i.e guardian or social worker).
If the claimant is a child it is generally preferable for a parent to take on the role as litigation friend, so long as there is no conflict.
If a suitable and/or willing litigation friend cannot be found then it may be necessary to approach the Official Solicitor (a public office funded by the government). This is usually considered a last resort.
If court proceedings are issued a litigation friend will need to be identified and will need to sign a Certificate of Suitability, which must be filed with the court.
What are the responsibilities of the Litigation Friend?
The primary duty of the litigation friend is to assist the claimant in bringing and advancing their claim. The claim itself will be conducted in the same way as if the claimant did not need a litigation friend and was bringing the claim independently, but it is the litigation friend who gives instructions to the claimant’s legal representatives not the claimant.
During the course of the claim the litigation friend will be required to undertake a variety of tasks which may include the following:
- making decisions in relation to the claim;
- liaising with the claimant’s solicitors;
- dealing with correspondence;
- approving and signing documents;
- attending meetings with solicitors and barristers;
- ensuring the claimant’s attendance at medical appointments (for the purpose of the claim);
- explaining the process to the claimant (it is for this reason that those who have a close relationship with the party may be the most appropriate choice as litigation friend as this is often very difficult).
The litigation friend will have to carefully consider any offers of settlement made, and it will be their final decision as to acceptance of proposed compensation (if the claim is successful). This highlights the level of responsibility the role of litigation friend holds.
It is very important that a litigation friend acts in the best interests of the party at all times. He or she should always (or whenever possible) take into consideration a party’s wishes and feelings when making decisions.
The litigation friend does not have any authority outside of the claim.
Can a Litigation Friend be replaced during the claim?
It is possible for a litigation friend to be replaced if for whatever reason he/she is unable to or no longer wishes to continue in this role. If the claim has been issued at court this will involve an application to the court for their approval.
What happens at the end of the claim?
Any settlements reached on behalf of a child or a protected party must be approved by the court. This involves a hearing at which the litigation friend must attend. In cases where the party is a child the litigation friend will be responsible for providing the court with a birth certificate and investment form.
When does the role of Litigation Friend end?
If a Litigation Friend is representing a child their involvement will when the child reaches the age of 18 or at the end of the claim. In cases where the party lacks capacity their involvement ends if the party regains capacity or at the end of the claim.
Emmott Snell Solicitors have a number of clients who require a litigation friend and recognise and appreciate their considerable contribution and assistance to bringing a claim on behalf of another who has suffered harm.