JUST LET GO: COURTS CANNOT FORCE A LITIGATION FRIEND TO KEEP ON ACTING: HIGH COURT DECISION

In Major v Kirishana [2023] EWHC 1593 (KB) Mr Justice Cotter allowed an appeal in which  a judge had refused a Litigation Friend’s application to terminate their appointment.   The judgment makes it clear that there will be very few circumstances in which a Litigation Friend will be compelled to continue to act against their will.

“The starting point when considering whether the appointment of a litigation friend (legally qualified or not) should be terminated 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 not merely factors which may be taken into account in the balance with no more weight than any other considerations. The Court should guard against any weakening of these mandatory requirements which may deprive a protected party of what the rules deem as necessary protection. If the conditions are no longer satisfied, or the Litigation Friend no longer consents to act it, it will require exceptional circumstances for the appointment to continue.”

THE CASE

The claimant (respondent to the appeal) brought an action against the claimant for loans made when the parties were in a relationship.  The defendant lacked capacity and had a litigation friend, Ms Cowell, who agreed to act part way through the litigation.

THE LITIGATION FRIEND’S APPLICATION TO TERMINATE HER APPOINTMENT AS LITIGATION FRIEND

The Litigation Friend had health issues and applied for an order that her appointment be terminated.

THE UNSUCCESSFUL APPLICATION BEFORE THE CIRCUIT JUDGE

The hearing came before the Circuit Judge in June 2021.   The Litigation Friend’s application was dismissed, the judge observing:-

 

“A primary reason that the litigation friend’s application failed was Mr Major’s inability to put forward any person in his umbrella of friends, family or other related persons of an alternative individual. The litigation friend has quite properly, based on her own medical condition, suggested that she is not the best person to represent Mr Major’s interests. Her application failed primarily because there is no one better able presently to represent his interests in the remaining period down to trial.”

THE SUBSEQUENT TRIAL

The Litigation Friend appealed and tried to adjourn the trial date.  The application for an adjournment was not successful and the matter proceeded to trial. The defendant was not represented at the trial and judgment was given for the clamant.

THE PROGRESS OF THE LITIGATION FRIEND’S APPEAL

There were issues with the Litigation Friend’s appeal which, at one stage was struck out. In December 2022, after a two day hearing, the appeal was reinstated and the Litigation Friend given permission to appeal.

THE LITIGATION FRIEND’S SUCCESSFUL APPEAL

On appeal it was held that the Circuit Judge had applied the incorrect test.
    1. The starting point when considering whether the appointment of a litigation friend (legally qualified or not) should be terminated 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 not merely factors which may be taken into account in the balance with no more weight than any other considerations. The Court should guard against any weakening of these mandatory requirements which may deprive a protected party of what the rules deem as necessary protection. If the conditions are no longer satisfied, or the Litigation Friend no longer consents to act it, it will require exceptional circumstances for the appointment to continue. Here there was no finding that the application, made by a litigation friend who was acting as a litigant in person, was anything other than bona fides. She no longer consented to act and doubted her ability “to comply with my duties to act in the Defendant’s best interests and have concerns about my ability to make effective decisions on behalf of the Defendant.” Having raised no issue with Ms Cowell about her mental health and its impacts the Judge should have considered whether there were any exceptional circumstances which could mean that it was proper to order her to remain in the role. In the absence of such circumstances the application should have succeeded.
    1. Although not expressly set out within CPR 21.4(3) consent is a fundamental requirement for a litigation friend’s appointment. It is very difficult to envisage circumstances where a person who makes an application to be appointed does not consent to the appointment at the time the application is made. The Court will ordinarily require consent to be specifically addressed through form N235 although this is no longer expressly required by a Practice Direction. It will only be in very rare circumstances that the Court will appoint a person without first considering this issue (or being able to arrive at a view that consent is likely as in Kumar v Hellard).
    1. Consent is a requirement not just a matter of basic principles of justice and fairness but also for the reasons particularly emphasised in Bradbury. For the avoidance of doubt I agree with Foskett J’s statement in Bradbury that
‘I do not think that there is any warrant for the conclusion that the consent of any person to act as a litigation friend is irrevocable, certainly under the regime provided for by the CPR.’
    1. Whilst the withdrawal of consent will not axiomatically lead to the termination of an appointment (as also noted in Bradbury), it must be a key factor both in its own right (because the court faces forcing someone to do something which they no longer wish to do) and also due to the risk that the presence of an unwilling, non-consenting litigation friend poses to the fairness of the proceedings and to the safeguarding of the protected party’s interests. I think it likely that these factors gave rise to Pepperall J’s “first blush” concern about the order in issue.
    1. Mr Karia’s submission that consent is “not a true factor” for a litigation friend is misconceived. The argument “at a slightly lower level” that the requirement of consent exists only at the time of appointment is also wrong. The need for consent continues throughout the appointment. As was pointed out in Bradbury in the absence of consent a conflict of interest arises.
    1. In the present case the withdrawal of consent was understandable and justifiable and His Honour Judge Luba KC raised no issue with Ms Cowell’s evidence as to the onset of her mental health issues and the likely impact of continuing her role as a litigation friend. It appears that the Judge quite properly ignored the comments about her “claiming” to suffer anxiety and to her “changing whims”. These comments should not have been made.
    1. Mr Burkett’s unnecessarily aggressive conduct of the litigation unsurprisingly, and considerably, heightened Ms Cowell’s anxiety and this was not her fault.
    1. Given that Ms Cowell no longer consented and doubted her ability to comply with her duties it required exceptional circumstances to justify forcing her to continue. However the application had additional merit given the consequential risk to Ms Cowell’s health of making her continue, the lack of continuous legal representation, the complexity of the matter (the trial bundle being around 2500 pages with Mr Major’s lack of capacity likely to impact on the extent of the defence evidence), and the need to consider settlement/conduct generally.
    1. The loss of a trial date alone cannot ordinarily outweigh the fact that there is no longer consent or that the requirements for appointment as a litigation friend are no longer met. The reason for this is obvious. The trial may well not be a fair one if the protected party has his/her interests in the hands of a person who cannot competently and/or and fairly conduct the proceedings and/or no longer wishes to do so ( in which case a conflict of interest arises as the litigation friend’s interest lies in the speedy conclusion of proceedings). There is also the risk of consequential litigation brought on behalf of the protected party in respect of any perceived failings of the Litigation friend to act with appropriate care.
    1. I fully recognise that this decision was an exercise of discretion. However it is a well established principle that an appellate court can, and should, interfere with that exercise if it has gone seriously wrong. In my Judgment the Judge failed to properly direct himself as to the correct approach to the issue before him and fell into serious error. As a result the decision was plainly wrong and/or outwith the discretion allowed by the CPR upon an application by a litigation friend to be discharged.
    1. The circumstances of Ms Cowell plainly and overwhelmingly were such that they should have led to her being discharged. She no longer consented to act and there was a real risk (due to her significant mental health difficulties and related personal situation) of her not being capable of performing her duties properly and/or of her having an interest adverse to that of Mr Major in that she would want the litigation to be over and could not face interaction with Mr Burkett (including with regard to settlement).
    1. Whilst a discretion exists on an application to terminate it is trammelled. As I have set out once the conditions in CPR 21.4 and/or consent are no longer present it would take exceptional circumstances for a decision to continue the appointment to be justified. As Foskett J observed in Bradbury the Court has
‘little room to manoeuvre when presented with such an application’
    1. In the present case the loss of a trial date (which had only be obtained as a result of Ms Cowell agreeing to act) and the fact that no substitute had been identified could not constitute sufficiently exceptional circumstances to displace the usual result of a lack of consent and/or inability to satisfy the conditions at CPR 21.4(3).
    1. Ground one is successful, the decision was wrong and the order that Ms Cowell continue as litigation friend should not have been made
  1. I shall deal briefly with grounds two and three which also concern the exercise of discretion.

THE OTHER GROUNDS OF THE APPEAL

The judge considered the other grounds of appeal:-

Findings as to representation at and preparation for trial ( ground two )
    1. Further and in any event the Judge fell into error in the exercise of his discretion by taking into account and attaching weight to his view that there was “relatively little left to do before the trial” given that “all that remains to be done for trial in the instant case is agreement of the bundle and attendance at the trial, and suitable instruction of an advocate for Mr Major”. He was encouraged into this error by the Respondent’s submissions. As Ms Cowell correctly stated she had “to make decisions about his trial”, in respect of which she did “not feel confident to do that at all.”
    1. The conduct of litigation is an onerous responsibility and cannot be sensibly divided into set procedural steps without consideration of the ancillary duties such as the continuing need to review prospects of success, evidential issues and to also to consider settlement. Here Ms Cowell was faced with the difficulty of Mr Major lacking capacity yet being the sole potential witness of fact in his own defence.
    1. Care is also necessary when equating assistance from a pro-bono advocate at hearings with a solicitor having conduct of the action. The Judge’s finding was only that it was likely that there would be “assistance” specifically at trial. He failed to properly take into account the conduct required of Ms Cowell involved far more than simply preparing for the trial date. In particular the Judge overlooked that Ms Cowell should be considering settlement. Had he addressed his mind to it he would have had to recognise Ms Cowell’s understandable reluctance to engage with Mr Burkett given her health could impair that process.
    1. As a result the Judge took into account a factor which he should not have taken into account in the exercise of his discretion. Ground two also succeeds. This would require me to undertake a fresh exercise of discretion, but given my conclusions on ground one this is not necessary.
The requirement for the identification of a substitute (ground three)
    1. The Judge also fell into error by applying, in effect, a prerequisite that a substitute be identified. He found that the reason that the application “failed primarily” was Mr Major’s inability to put forward any person to take on the role in the remaining period down to trial.”
    1. As I have already set out there is no requirement on a litigation friend to identify a substitute before termination of the role will be allowed. Rather as I have identified if the conditions for appointment are no longer met and/or the litigation friend no longer consents, exceptional circumstances will be required before the appointment can continue.
Compulsory Labour (Ground four)
    1. Given my conclusions on the first three grounds it is not necessary to deal with the discrete argument under ground four. It is a not a straightforward issue and has some substance. Conduct of litigation can be very onerous, time consuming and a litigation friend acting for a defendant is not entitled to expenses.
Conclusion
    1. For the reasons set out above this appeal succeeds. Ms Cowell’s role as a litigation friend should have been terminated in June 2021.

THE NEED FOR A REVIEW OF THE RULES

 

  1. In view it would be desirable for the CPRC to consider clarification of the issue of consent in respect of an application under CPR21.6 given that the practice Direction is no longer in force (and there may be doubt as to the Court’s ability to require form N235 be signed).