Bradbury & Ors v Paterson & Ors

A litigation friend’s consent to act is not irrevocable. Under the Civil Procedure Rules 1998, the court may terminate the appointment of a litigation friend even if the protected party has no immediate substitute. The court retains a full discretion and must consider the practical consequences. The Official Solicitor cannot be compelled to continue acting where the funding for the protected party’s representation has ceased.

A protected party’s lack of a litigation friend does not necessarily halt every aspect of the litigation. The court may permit further steps under the applicable procedural rules. Where necessary to prevent a procedural deadlock, the court may direct other parties provisionally to fund the Official Solicitor’s costs, subject to later costs recovery.

Five former patients brought clinical negligence claims against Ian Paterson and two organisations for whom he had worked. Mr Paterson had previously been found to lack capacity to conduct the proceedings, and the Official Solicitor had been appointed as his litigation friend.

After the Medical Defence Union withdrew funding for his defence costs, the Official Solicitor applied under the Civil Procedure Rules 1998 to be discharged. A judge granted that application and the proceedings were stayed against Mr Paterson. The claimants and other defendants sought to set aside that order.

The central issues were whether the Official Solicitor could be compelled to continue acting, what procedural consequences followed from the absence of a litigation friend, and how the litigation should be funded and progressed while Mr Paterson’s capacity remained unresolved.

1. The application to set aside the earlier orders was refused. The court held that the Official Solicitor could not properly be compelled to continue acting after the anticipated funding had ceased.
2. On the construction of the Civil Procedure Rules 1998, the power under CPR 21.7(1)(b) to terminate a litigation friend’s appointment is not conditional on the prior identification of a substitute. A litigation friend must consent to act, and that consent is not irrevocable. The court has a full discretion, although the circumstances may leave little practical room for manoeuvre.
3. The requirement that a protected party have a litigation friend does not mean that all proceedings must necessarily stop. CPR 21.3(3) permits the court to authorise further steps pending appointment of a litigation friend.
4. The court accepted the Official Solicitor’s evidence that the funding had been withdrawn and that neither the court nor the Official Solicitor could compel the Medical Defence Union to provide it. The discussion in In the Matter of D (A Child) [2014] EWFC 39 was treated as pertinent support for the Official Solicitor’s position.
5. The immediate practical issue was Mr Paterson’s capacity. If he had capacity to conduct the litigation, a litigation friend would not be required. If he remained a protected party, possible funding routes included payment from his assets, intervention by the Court of Protection, or an order requiring other parties to provide interim funding.
6. Using CPR 3.1(2)(m) and/or the inherent jurisdiction, the court ordered the claimants and the second and third defendants to pay £2,500 each to the Official Solicitor. The money was to fund an independent capacity assessment and related advice, without prejudice to later arguments about costs. The proceedings were stayed for eight weeks, subject to steps required to obtain and report on the assessment, and the matter was to be transferred to Charles J for further case management.