Hinduja v Hinduja & Ors

A protected party must have a litigation friend. The prescribed procedure for appointment without a court order must be followed, although the court may appoint a litigation friend under CPR 21.6 and retrospectively validate earlier steps under CPR 21.3(4). A close relative is not disqualified merely because they have a personal or financial interest aligned with the protected party. The relevant questions are whether the proposed litigation friend can act fairly and competently in the protected party’s best interests and has no adverse interest. Medical evidence is not invariably required to establish litigation incapacity. The open justice principle means that statements of case, judgments, orders and transcripts should ordinarily be available as of right. A limited on-notice procedure may nevertheless be imposed for applications for other court documents where a fact-specific balancing exercise is required.

The claimant, a protected party, brought Part 8 proceedings against his brothers concerning the validity and effect of two letters said to regulate ownership, authority and succession in relation to family assets. The court considered applications concerning the appointment of the claimant’s daughter, Vinoo Hinduja, as litigation friend and restrictions on non-parties’ access to court documents.

The certificate of suitability required by CPR 21.5 had been filed late. The defendants challenged the claimant’s capacity, the proposed litigation friend’s competence and alleged adverse interests, and sought wider restrictions connected with related private proceedings in Jersey. The central issues were whether the court should appoint Vinoo under CPR 21.6, validate prior procedural steps, and impose restrictions consistent with open justice.

1. Appointment and validation. The court appointed Vinoo as the claimant’s litigation friend under CPR 21.6 and ordered that steps taken before her appointment should have effect under CPR 21.3(4). CPR 21.5 is prescriptive and provides the only route to appointment without a court order. CPR 3.10 could not displace the specific effect of CPR 21.3(4), under which steps taken before appointment have no effect unless the court orders otherwise.
2. Capacity. Capacity was determined under the Mental Capacity Act 2005. The evidence established both that the claimant was unable to make decisions concerning the proceedings and that this resulted from an impairment or disturbance in the functioning of the mind or brain. The rules did not require medical evidence in every case. The certificate and evidence from those closely involved in the claimant’s care were sufficient in the circumstances.
3. Suitability of the litigation friend. The requirements in CPR 21.4(3) concern fair and competent conduct of proceedings and the absence of an adverse interest. A litigation friend need not be independent or impartial as between the parties. They must act in the protected party’s best interests, understand the litigation, take proper legal advice and exercise judgment in assessing that advice. A personal or financial interest does not disqualify a relative where the interest is aligned with that of the protected party.
4. Open justice. The court dismissed the privacy application except to the extent that applications for access to documents under CPR 5.4C(2) had to be made on notice. Statements of case, judgments, orders and transcripts of public hearings should ordinarily be supplied without further enquiry. Applications for other court records require a fact-specific balancing exercise between the purpose and value of open justice and the risk of harm to the judicial process or legitimate interests.
5. The parties were permitted three clear days to make written submissions on any application under CPR 5.4C(2), with the court to decide the application on the papers unless it directed otherwise.