Jamous v Mercouris

A person who lacks capacity to conduct civil proceedings must have a litigation friend. Appointment requires evidence satisfying the court that the proposed litigation friend can act fairly and competently, has no adverse interest, and undertakes responsibility for adverse costs. The court must assess the proposed representative’s actual conduct and its effect on the protected party’s interests. A person’s trust or family relationship cannot outweigh serious and continuing procedural misconduct.

The judgment concerned an application by Mrs Jamous to be appointed litigation friend for her adult son, Mr Jamous, in an appeal against Master Davison’s order of 18 December 2018 striking out Mr Jamous’s claim for failure to file a certificate of capacity.

The court had previously stayed the appeal pending determination of capacity and appointment of a litigation friend. The parties accepted that Mr Jamous lacked capacity, but the court considered the medical evidence and the requirements for appointment. The central issues were whether Mr Jamous was a protected party and whether Mrs Jamous satisfied the conditions in CPR rule 21.4(3), as incorporated by rule 21.6(5).

1. Capacity. Applying Mental Capacity Act 2005 section 3, the court held on the balance of probabilities that Mr Jamous lacked capacity to conduct the proceedings. He was therefore a protected party requiring a litigation friend under CPR rules 21.2 and 21.3.
2. Applicable requirements. An application for appointment under CPR rule 21.6 must be supported by evidence. The court had to be satisfied that Mrs Jamous could fairly and competently conduct proceedings on her son’s behalf, had no interest adverse to him, and undertook to pay any costs which he might be ordered to pay, subject to any right of reimbursement under CPR rule 21.4(3).
3. Fair and competent conduct. A litigation friend’s function is to conduct litigation for the protected party’s benefit and in his best interests. The role also protects other parties from litigation conducted improperly. The court considered the principles in Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; [2002] EWCA Civ 1889 and RP v Nottingham City Council [2008] EWCA Civ 462.
4. The court placed substantial weight on Mrs Jamous’s repeated failure to comply with orders, issuance of applications certified as totally without merit, attendance before judges without proper notice, and failure to follow procedural requirements. Her belief that she acted in her son’s best interests, and his trust in her, did not overcome the serious risk that the litigation would continue to be conducted contrary to his interests. The proposed costs undertaking was also of little practical value, particularly in light of QOCS and the possible reduction of any damages by costs orders.
5. The application to appoint Mrs Jamous as litigation friend was refused. The appeal against the underlying strike-out order remained unresolved.

• High Court (Queen’s Bench Division): Master Davison ordered on 18 December 2018 that Mr Jamous’s claim stood struck out for failure to file the required certificate of capacity.
• High Court (Queen’s Bench Division): On appeal, Mr Justice Stewart stayed further steps pending appointment of a litigation friend and refused Mrs Jamous’s application for appointment.