LZL (A Protected Party) v HYC & Anor

A litigation friend must be able to conduct proceedings fairly and competently and must have no interest adverse to the protected party. A family relationship with an opposing party does not, by itself, establish unsuitability or require replacement. The court must assess the litigation friend’s actual ability to safeguard the protected party’s interests, follow court orders and conduct the litigation effectively.

Where serious concerns arise, the court may give the litigation friend an opportunity to remedy the problem before appointing the Official Solicitor. Replacement may become appropriate if the required corrective step is not taken promptly or further obstacles arise.

The claimant, a protected party lacking capacity to conduct personal injury proceedings arising from a road traffic accident, had been represented by her mother-in-law as litigation friend. The mother-in-law was also the first defendant’s mother. Concerns arose about potential conflicts of interest, lasting powers of attorney, opposition to an order requiring an application to the Court of Protection, and delay in progressing the claim.

The court considered whether the existing litigation friend should be replaced by the Official Solicitor. It also considered an application to extend time for compliance with the earlier order.

1. The claimant’s application for an extension of time to apply to the Court of Protection was allowed. The existing order remained in force and the application had to be made promptly, within 14 days or such other reasonable and limited period as counsel indicated was necessary.
2. The court was not satisfied that immediate replacement of the litigation friend was required. A family relationship with the first defendant did not itself establish an adverse interest. There was no evidence that the lasting powers of attorney were likely to be intentionally misused or that the mother-in-law could not safeguard the claimant’s interests.
3. However, the mother-in-law’s lack of insight into the need for a professional deputy and her failure to comply with the order created real concerns about her ability to conduct the proceedings competently. The delay had prevented the claimant from using interim damages to move to suitable accommodation and risked further cost and delay.
4. Balancing those concerns against the mother-in-law’s close relationship with the claimant, her ability to assist with medical appointments, the claimant’s wishes and feelings, the new solicitor, the provision of the outstanding documentation and other cooperation, the court decided to give her another opportunity.
5. Unless the Court of Protection application was made promptly, the Official Solicitor should replace the existing litigation friend. The claim was to be listed for review in six months so that the court could assess progress and whether the litigation friend remained suitable.

Not an appellate decision. The judgment records an earlier order made by His Honour Judge Bilal Siddique sitting as a Deputy Judge of the High Court, requiring an application to the Court of Protection and directing that the question of replacement of the litigation friend be heard on notice to the Official Solicitor.