Folks v Faizey

Where a person and a proposed litigation friend consent to the appointment, adequate evidence supports the application, and the application is bona fide, the court should ordinarily appoint the litigation friend. The opposing party has no general entitlement to contest the application merely because supporting evidence is required.

A fuller inquiry may be justified where the person concerned disputes the appointment or another party has a legitimate interest. It should not be ordered where it would cause disproportionate expense and delay without protecting any legitimate interest. The distinction between capacity to litigate and capacity to manage property and affairs does not invariably require a preliminary trial.

The claimant suffered a severe brain injury in a road traffic accident and claimed damages from the defendant. Liability was compromised at 79% in the claimant’s favour. The Court of Protection accepted him as a patient and appointed a receiver.

The claimant, his proposed litigation friend and medical evidence supported an application to appoint his sister as litigation friend. Although the experts agreed that he could not manage and administer his affairs by reason of mental disorder, one expert considered that he probably retained capacity to litigate. His Honour Judge Wood QC adjourned the application for trial as a preliminary issue, considering that Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 required fuller medical inquiry.

The issue was whether that inquiry was necessary before the litigation friend could be appointed.

1. Appeal allowed. The judge ought to have appointed the litigation friend on the evidence before him. The proposed patient and litigation friend consented, responsible medical evidence supported a bona fide application, and the defendant faced no identifiable prejudice. Appointment would instead afford protection to both parties.
2. Per Pill LJ, with whom Keene and Wilson LJJ agreed, Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 did not promote routine satellite litigation about capacity. Its statements that capacity is issue-specific, that the final decision rests with the court and that medical guidance is ordinarily required arose in materially different circumstances. That case concerned a past compromise, retrospective regularisation and finality. In an ordinary prospective application, adequate responsible evidence may provide all the medical guidance required.
3. The capacity rules protect persons under a disability and those assisting them. They do not require costly collateral proceedings of minimal significance to the principal action. Although the distinction between litigation capacity and capacity to manage property and affairs may sometimes require resolution, it did not justify a preliminary trial here.
4. Under the overriding objective in Rule 1.1 of the Civil Procedure Rules 1998, the proposed specialist hearing was disproportionate. It would generate unnecessary expense, delay the proceedings and prolong uncertainty about whether the claimant’s solicitors could act.
5. Per Keene LJ, the requirement in Rule 21.6(4) for supporting evidence prevents the court from acting as a rubber stamp. It does not confer a general right on the opposing party to adduce evidence against appointment. An issue may require trial where the proposed patient disputes the appointment or where the other party has a legitimate interest. Neither circumstance arose.
6. Per Wilson LJ, whether an application made during proceedings must be served on the other party depends on whether the court directs service under Rules 23.1 and 23.4(1). An appointment is not ordinarily an order sought against that party.

1. Court of Appeal (Civil Division): The appeal was allowed and the decision to adjourn the application for trial as a preliminary issue was displaced: Folks v Faizey [2006] EWCA Civ 381.
2. Queen’s Bench Division, Birmingham District Registry: His Honour Judge Wood QC, sitting as a Deputy High Court Judge, adjourned the application to appoint a litigation friend for trial of a preliminary issue concerning the claimant’s capacity.