KARCIHAN MERIC v ANDREW NAVIS

A litigation friend’s appointment may be terminated where the protected party has regained capacity, or where the Official Solicitor no longer consents to act and material circumstances have changed. Capacity is assessed at the time of decision and may change over time. Difficulties in understanding procedure, obtaining evidence or conducting litigation do not, by themselves, establish incapacity to conduct proceedings. A replacement litigation friend must be able to conduct the proceedings fairly and competently. Where a litigant becomes self-represented in complex litigation and may be vulnerable, the opposing parties, their representatives and the court retain important procedural responsibilities. The court may also encourage mediation and assist with its practical arrangements.

The claimant brought a substantial road-traffic claim concerning causation and quantum, including alleged psychiatric injury. He had previously been found unable to conduct the proceedings, and the Official Solicitor was appointed as his litigation friend on 11 July 2019.

The Official Solicitor later sought to terminate that appointment after concluding that she could no longer secure suitable legal representation or reasonably continue. Her application was dismissed by HHJ Graham Wood QC on 7 December 2020. The Official Solicitor appealed. The claimant and a third party, Mr Djaaroun, also applied to remove or replace the Official Solicitor. The central issues were the claimant’s current capacity, the continuation of the Official Solicitor’s appointment, and the suitability of the proposed replacement.

The court granted the Official Solicitor’s fresh application, allowed her appeal, and dismissed Mr Djaaroun’s application.

1. Capacity. Capacity to conduct proceedings is assessed at the time of the decision and may change. Having observed the claimant conduct the hearing, the court concluded that he could understand what his opponent said, respond, answer questions and make decisions. The fact that a trial would be difficult, or that he lacked a reliable understanding of litigation procedure and would need assistance with expert evidence, did not establish incapacity within CPR 21.
2. Official Solicitor. The Official Solicitor no longer consented to act and material circumstances had changed, including the loss of suitable solicitors and consequential funding and costs risks. That situation could justify termination of the appointment: Bradbury and Others v Paterson and Others [2014] EWHC 3992 (QB). HHJ Graham Wood QC had been understandably concerned to preserve the position, but had insufficient material to justify finally refusing the application.
3. Replacement litigation friend. Mr Djaaroun was not shown to be able to conduct the proceedings fairly and competently. His application was therefore refused under CPR 21.7(3) and CPR 21.4(3)(a).
4. The claimant was directed to notify the insurer that the litigation friend’s appointment had ceased, provide an address for service and state whether he intended to continue. The matter should proceed to case management, with particular attention to disclosure, expert evidence and mediation. The court also emphasised the responsibilities of the insurer and its representatives towards a potentially vulnerable litigant in person.

• High Court (Queen’s Bench Division): the appeal from the order of HHJ Graham Wood QC dated 7 December 2020 was allowed. The Official Solicitor’s fresh application was granted and Mr Djaaroun’s application was dismissed.
• County Court at Liverpool: HHJ Graham Wood QC dismissed the Official Solicitor’s application to terminate her appointment on 7 December 2020.