Keays v Parkinson, The Executors of the Late

The court’s power to replace a litigation friend must be exercised by reference to the protected party’s interests and the conduct of the particular litigation. An independent interest is not adverse merely because it exists; it must create a real possibility that the litigation will be conducted otherwise than for the protected party’s best outcome. Historic disputes and procedural failings should be assessed proportionately, particularly where responsibility for those failings is uncertain. The court should be reluctant to impose a litigation friend on a parent or responsible person where a suitable candidate is available, and should normally respect that person’s choice absent good reason. Costs of a replacement litigation friend may be paid from the estate in the first instance, with ultimate responsibility reserved for trial.

The claimant, who lacked capacity to conduct litigation, brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against the executors of her deceased father’s estate. Her mother acted as litigation friend. The executors applied under CPR 21.7 to remove her and appoint a solicitor instead, alleging incompetence and an adverse interest. During earlier hearings, arrangements were made to identify a replacement solicitor and to fund the replacement’s costs from the estate. The remaining issues were whether grounds for removal had been established and which solicitor should be appointed.

1. Removal application dismissed. The court was not satisfied that the claimant’s mother could not fairly and competently conduct the proceedings or that she had an interest adverse to the claimant within CPR 21.4(3).
2. The adverse-interest inquiry concerns the conduct and outcome of the particular litigation. A personal interest or reason for pursuing litigation is not ordinarily adverse where it runs in the same direction as the protected party’s interests. A possible conflict matters only if it may affect how the litigation is conducted. The court adopted the approach in Davila v Davila, including the requirement that the litigation friend seek the best outcome and exercise independent judgment.
3. The executors’ reliance on events ending 22 years earlier had limited probative value. Resolving the extensive historical disputes would have been disproportionate on an application that should be determined summarily. The alleged procedural failings did not establish incompetence because it was uncertain how far they were attributable to the mother rather than her publicly funded counsel. With competent specialist solicitors, she remained capable of conducting the proceedings fairly and competently.
4. The court should be reluctant to impose a litigation friend on a parent or responsible person and should do so only where there is no other viable candidate. The court’s previous directions enabled the mother to identify a solicitor in whom she had confidence. The executors had no general right to select or veto that solicitor. Their criticisms of Ms Rose were not made out, and possible personal difficulties between her and the executors’ solicitor did not engage the overriding objective in CPR 1.1.
5. Ms Rose was appointed as litigation friend. Under CPR 64.2(a), her reasonable costs of acting as litigation friend and conducting the litigation were to be paid from the estate in the first instance. As between the claimant and the beneficiaries, those costs were reserved to the trial judge. The court also noted that the executors should distinguish costs incurred in their representative capacity from costs incurred in opposing the claim: see CPR PD 46, para 1.

This was a first-instance application under CPR 21.7. The court recorded earlier directions and hearings concerning the possible appointment and funding of a replacement litigation friend.