George Major (by his litigation friend Katherine Gee) v Kalaivani Jaipal Kirishana

On an application to terminate a litigation friend’s appointment, the primary question is whether the conditions in CPR 21.4(3) continue to be satisfied and whether the litigation friend continues to consent to act. These are mandatory safeguards, not ordinary factors to be balanced equally against case-management convenience. If the conditions or consent are absent, exceptional circumstances are required before continuation can be justified. The loss of a trial date, the imminence of trial and the absence of a substitute will not ordinarily suffice. A litigation friend’s role includes the conduct of the litigation, assessment of evidence and prospects, and consideration of settlement. It cannot be reduced to assembling a bundle, instructing an advocate and attending trial.

The appeal concerned an interim case-management order made by His Honour Judge Luba KC on 4 June 2021 in a contractual claim. Mr Major had been found to lack capacity to conduct the proceedings, and Ms Cowell had been appointed as his litigation friend. Following a deterioration in her mental health, she applied under CPR 21.7 to terminate her appointment, stating that she no longer consented and could not fairly and competently conduct the litigation.

The judge dismissed the application, principally because trial was imminent, there was a risk that the trial date would be lost, relatively little remained to be done, and no substitute litigation friend had been identified. Mr Major appealed that order.

1. Appeal allowed. The order requiring Ms Cowell to remain as litigation friend was set aside. Her appointment should have been terminated.
2. On an application under CPR 21.7, the starting point is whether the litigation friend continues to satisfy CPR 21.4(3), including the ability fairly and competently to conduct the proceedings and the absence of an adverse interest. Continuing consent is also a fundamental requirement. These matters are not ordinary factors having no greater weight than trial convenience.
3. Withdrawal of consent does not automatically compel termination, but continuation in the absence of consent or satisfaction of the CPR 21.4(3) conditions requires exceptional circumstances. An unwilling litigation friend may have an interest adverse to the protected party because of the desire to end the litigation, and may be unable properly to safeguard that party’s interests.
4. The judge materially understated the litigation friend’s duties. Conducting litigation includes reviewing evidence, considering prospects, addressing ancillary procedural matters and considering whether to make, accept or reject settlement offers. Assistance from pro bono counsel at trial was not equivalent to legal representation with conduct of the case.
5. There is no requirement under CPR 21.7 that a substitute litigation friend be identified before termination. The absence of a substitute and the risk of losing a trial date could not amount to sufficiently exceptional circumstances in this case.
6. The judge had therefore adopted the wrong legal approach and reached a decision outside the proper scope of his discretion. It was unnecessary to determine the argument based on Article 4 of the European Convention on Human Rights or the materiality of the later trial order. The court invited consideration of clarification of the consent requirement in the Civil Procedure Rules.

• High Court (King’s Bench Division): The appeal from the order of His Honour Judge Luba KC dated 4 June 2021 was allowed. The court held that Ms Cowell’s appointment as litigation friend should have been terminated.
• County Court: His Honour Judge Luba KC dismissed the application to terminate Ms Cowell’s appointment and ordered Mr Major to pay the application costs. The underlying claim later proceeded to trial and judgment was entered for the respondent, but that trial order was not appealed.