In Y v Z [2023] EWFC 205 HHJ Edward Hess ordered that the litigation friend for the respondent pay, personally, the applicant’s costs caused by the need to adjourn a hearing.  The respondent had not prepared at all for the hearing and responsibility for this lay with the litigation friend.

I have decided that the appropriate order is to hold Dr X 100% responsible for these costs. He willingly took on the role of litigation friend and his performance has been wholly inadequate. I accept that he has not been well, but this fact does not adequately excuse or explain his conduct and he should not escape the consequences of what has happened.


The applicant and respondent were former husband and wife. The husband applied for a variation/discharge of a periodical payments order following a change in his financial circumstances.   The wife lacked capacity and was proceeding by way of a litigation friend “Dr X”.  The matter was listed for a five day final hearing.


It had been apparent, for many months prior to the hearing, that the respondent’s original counsel was not available. The Litigation Friend did nothing to arrange a replacement.

“I have been told by Ms Phipps that neither she nor anybody on her team had heard any objection to the 23rd October 2023 date and they assumed that Mr McCourt would be representing the wife at that hearing until, in early October 2023 in response to being sent the bundles for the hearing, he communicated the fact to the wife’s solicitors that he was no longer involved. I had made the same assumption as the husband’s legal team. I have learned only in the last 24 hours that Dr X was aware by 17th April 2023 (from a communication from Mr McCourt) of Mr McCourt’s non-availability and was reminded of this fact in an exchange of emails with Mr McCourt’s clerk (Mark Betts) on 20th June 2023. Dr X appears (on the basis of the documentation provided by him) to have done nothing at all in response to this knowledge – neither has he sought alternative counsel nor has he requested (until very recently, far too late, after the husband had incurred his counsel’s brief fee) a change of trial date. In April or June 2023, or indeed some weeks or even months later, there was plenty of time to instruct a different counsel, but nothing was done to achieve this or even signal the problem to the other side or the court. I note from recently produced medical letters that, in this period, Dr X was himself beginning to suffer from depression and that at some point he was signed off his own work with sickness, but this does not adequately explain or excuse his failures to do something in response to what he had been told about Mr McCourt’s non-availability.”


The Litigation Friend did nothing in the run up to the hearing.  He has stopped responding to messages left by the respondent.

(ii)              Dr X is now unwell himself, is suffering from depression and other ailments and has, apparently since about April 2023 it now emerges, given up doing anything very much in his role as litigation friend. The wife told me he had long since ceased responding to her messages, though she appears to have done very little about this. Even if primary responsibility for these things lies with the litigation friend Dr X, I do not accept that the wife was unaware that the directions orders had not been complied with (indeed she vehemently declined to cooperate with some of them) nor that the case was not being properly prepared for trial.
(iii)            Dr X has now formally applied to be discharged as the wife’s litigation friend and has suggested that the wife needs to seek the assistance of the Official Solicitor instead (though neither of them has done anything about this, mirroring what happened in relation to the Schedule 1 litigation in 2016-2018).
(iv)             As I have said, there is no evidence of any attempt to find a replacement for Mr McCourt at any stage since April 2023. In any event, Mr McCourt certainly did not appear on 23rd October 2023 or subsequently.  
(v)               Dr X failed to appear (in person or remotely) on 23rd October 2023 and so the wife was left without a litigation friend and without any legal representation. In common with her presentation at so many previous court hearings, she has applied for an adjournment of proceedings. She has asked me not to make any substantive orders, but to re-list the case for another five day hearing for which (she says) she will take steps to make sure she is represented by the Official Solicitor. In listing terms this would, of course, put the case back for at least another six months, possibly more. Further, the history of this case leaves me with very low levels of confidence that the wife will, in fact, take the necessary steps to secure the involvement of the Official Solicitor.”
30.I cannot, and should not, however ignore the costs wasted by this week’s hearing, intended as a final hearing, being abortive or at least not final. Ms Phipps has told me (and I accept and assess this as a reasonable figure in the circumstances) that the husband’s costs of the present hearing amount to £42,128.79. Ms Phipps has argued (and I accept) that the fault for this hearing not being properly effective does not fall to the husband and that he should have his wasted costs paid.


The hearing could not proceed as a final hearing because the respondent did not have representation.  Some preliminary decisions were made and the final hearing had to be arranged for a new date. The judge then considered who should be responsible for paying the applicant’s costs of the abortive hearing.


The judge held that the costs should be paid by the respondent’s litigation frine.d
31..I sought submissions from Ms Phipps as to whether these costs should be paid by the wife or by Dr X and she has addressed me on the law on this subject – see FPR 2010 Rule 15 and the Court of Appeal decision in Barker v Confiance Limited [2021] 1 WLR 231. In this context I remind myself of the undertaking given by Dr X to the court when he took on his role as a litigation friend, this being in the standard form required by Rule 15.4.
32. I wanted to give Dr X the opportunity to respond to the costs application against him. I sent this email to him on the afternoon of 23rd October 2023:-
“Dear Dr KX,
I am forwarding this message received this afternoon from Ms Phipps, Counsel for Mr Y:-
“The final hearing in this matter was listed to commence this morning with a time estimate of 5 days. HHJ Hess felt unable to proceed with the trial owing to the fact that Dr. Z has been found to lack capacity and that you – her litigation friend – were absent and no arrangements had been made for her to be legally represented at the hearing. HHJ Hess therefore indicated that he is minded to make interim orders as he was not able to proceed with a fully contested hearing.
HHJ Hess will be delivering a written judgment on interim matters in this case, either tomorrow or first thing on Wednesday. Mr. Y is seeking an order for costs against you and/or Dr. Z in respect of the wasted costs for preparing for trial, in the sum of around £50,000. HHJ Hess will determine this application on Wednesday 25th October 2023 at 10am. If you wish to make submissions in relation to costs, you are invited to do so either by attending in person or, if you prefer, by video link. Please let the court know as soon as possible if you intend to attend and, if so, whether you would prefer to attend by video link, in which case suitable arrangements will be made.
You should be aware that in discussion with the judge today, Dr. Z appeared to put the blame for her failure to be prepared for trial on you. There may be an argument as to whether she or you should be responsible for any costs ordered and in what proportions.
The judge has indicated that he will terminate your appointment as litigation friend at the hearing on Wednesday, after the costs issue has been determined.”
This is a correct account of what happened this morning and you are accordingly invited to attend on Wednesday (25th October).”
33. Dr X felt too unwell to attend the hearing on 25th October 2023, either in person or by way of CVP video link, but he was able to send me a lengthy email in the early hours of 25th October 2023 with ten attachments which explained his position in detail so that my view is that he has had the opportunity to make such representations as he wished to make.
34.In deciding what costs orders to make I remind myself that the starting point (under FPR 2010 Rule 28.3(5)) is for there to be no order as to costs, but Rule 28.3(7) allows me to depart from this in certain circumstances, including where there has been relevant non-compliance with orders or litigation conduct (as there has been here, as described above). The Court of Appeal decision in Barker v Confiance Limited [2021] 1 WLR 231 suggests that, whether pursuant to the undertaking or by reference to Senior Courts Act 1981, section 51, the court can make a costs order against a litigation friend if, in all the circumstances, it is just to make a costs order.
35. I have reached a clear view that the fair and just outcome here is for me to make an order for Dr X to pay the whole of the costs wasted by the hearing this week not being able to be dealt with as a full final hearing and I assess this at £42,128.79, to be paid within 14 days. While Ms Phipps invited me to consider apportioning this 50:50 between the wife and Dr X, I have decided that the appropriate order is to hold Dr X 100% responsible for these costs. He willingly took on the role of litigation friend and his performance has been wholly inadequate. I accept that he has not been well, but this fact does not adequately excuse or explain his conduct and he should not escape the consequences of what has happened.
36. These are my decisions and, starting with the draft order helpfully produced by Ms Phipps, I have produced an order which matches these decisions.