Anybody who is injured in any type of no-fault accident may be eligible to claim compensation for their injuries. Typically, the injured party directly engages with a personal injury solicitor 
and liaises with them throughout the claims process. But what happens if the injured individual is unable to represent themselves due to their age, health or mental capacity?
This is where the concept of a litigation friend comes into play. Whether the individual in question is a child, unable to advocate for their own rights, or an adult who is too ill or has a mental disability that impairs their decision-making abilities, they require a dedicated representative to look out for their welfare and uphold their rights throughout the claims process. This representative is known as a litigation friend.
Understanding The Role Of A Litigation Friend
The role of a litigation friend is pivotal in personal injury and medical negligence claims involving claimants who cannot represent themselves due to age, health or mental incapacity. A litigation friend can essentially step in to act on behalf of somebody under the age of 18 or an adult who is too ill or has mental disabilities, ensuring their best interests are considered and protected throughout the claims process.
What Necessitates A Litigation Friend?
A litigation friend may become necessary in various personal injury and medical negligence claims, primarily involving:
- Minors (individuals under the age of 18) who are legally unable to make decisions regarding legal proceedings.
- Adults who are deemed to lack the mental capacity to make informed decisions about their legal matters, as determined by medical professionals or the court.
- Individuals too ill to represent themselves, whether due to the temporary severe impact of an illness or long-term health conditions that impair their ability to engage in legal processes effectively.
Being able to appoint a litigation friend ensures that every individual, regardless of their age, mental capacity, or health condition, has the same rights to claim compensation. It highlights the legal system’s commitment to inclusivity, fairness, and the protection of rights for all parties involved in legal matters, regardless of their personal circumstances.
The Scope Of A Litigation Friend’s Role
A litigation friend’s responsibilities extend beyond mere representation. They are entrusted with making informed decisions that align with the best interests of the person they represent. This includes:
- Communicating with legal professionals and making decisions about the progression of the case.
- Protecting the individual’s rights and ensuring their voice is heard and considered in legal matters.
- Managing any financial aspects of the case, including compensation awards.
The litigation friend essentially acts as the legal face of the individual they represent, taking on a role that requires diligence, integrity, and a deep commitment to the welfare of the person in their charge.
In the following sections, we will look at who can become a litigation friend, the process for appointing a litigation friend, and the detailed responsibilities that come with this important role.
Who Can Be A Litigation Friend?
Any eligible person can apply to be a litigation friend or they may be appointed by the court on request from another person involved in the case. All of the following individuals can typically serve as a litigation friend in personal injury and medical negligence cases if they’re approved:
- Parent/guardians. For minors, a legal guardian may naturally step into the role.
- Family members. A parent, spouse, or other close relative who has the individual’s best interests at heart.
- Professional advocates. In some cases, especially where no close family is available or in complex medical negligence or serious injury claims, a professional advocate with expertise in the area of law relevant to the claim may be appointed.
- Court of Protection Deputy. This deputy is authorised by the court to make a broad spectrum of decisions on behalf of an individual who cannot do so themselves. This role can include managing personal welfare, financial affairs, and sometimes healthcare decisions, providing comprehensive support over a potentially long-term period.
- Individuals with Power of Attorney. Those who have been granted lasting or enduring power of attorney over the individual’s affairs, specifically covering health and welfare decisions.
When selecting a litigation friend for a personal injury or medical negligence claim, it’s important to ensure the appointed person is best suited for the role. An understanding of the legal and medical complexities that characterise these types of claims is beneficial as it helps the litigation friend to make informed decisions.
Importantly, the chosen person must be free from any conflicts of interest that could compromise their ability to act solely in favour of the claimant’s needs. For example, if the litigation friend is a close friend or relative of a surgeon accused of causing brain damage, their personal relationship could influence their decisions and actions within the case.
Above all, the well-being and best interests of the claimant must be the paramount concern for the litigation friend. Every decision made should reflect a commitment to the claimant’s health, recovery, and legal rights.
If nobody is suitable or willing to take on this responsibility or there are no suitable litigation friends, the Official Solicitor takes on this role.
Duties & Responsibilities Of A Litigation Friend
Being a litigation friend comes with a list of important duties and responsibilities. Here’s some of what the role may typically involve:
- Going to court. You might need to attend court hearings on behalf of the person you’re representing, ensuring their interests are voiced and considered throughout the claims process.
- Working with solicitors. A big part of the role involves talking to solicitors, getting legal advice, and discussing the best ways to move the case forward. You’ll be the bridge between the legal team and the individual you’re helping.
- Making decisions. Sometimes, you’ll need to make choices about the case after weighing all the advice and information you’ve gathered. It’s about figuring out what’s best for the person you’re representing.
- Handling correspondence. Expect to deal with a fair bit of paperwork. You’ll manage letters, emails, and other correspondence related to the case, keeping everything organised and on track.
At the heart of all these tasks is one specific goal: to act in the best interests of the person you’re representing. Whether it’s deciding on a settlement amount or simply responding to an email, every action you take as a litigation friend should aim to benefit them, ensuring they get the best possible outcome from the legal process.
Financial Responsibilities & Considerations
Taking on the role of a litigation friend isn’t just about making legal decisions and attending court; it also involves managing some financial aspects related to the case. Here’s a closer look at what this might entail:
- Handling case costs. There may be various expenses associated with the accident claims process, from court fees to payments for expert reports. As a litigation friend, you’ll need to oversee these costs, ensuring they are paid on time and from the appropriate sources.
- Seeking compensation. Part of your role includes helping to secure compensation for the person you represent. This may involve working closely with personal injury solicitors, for example, to accurately present the case’s merits and negotiate a fair settlement.
- Managing compensation. If the claim is successful, managing the awarded compensation responsibly is vital. This might mean setting up trusts or making financial arrangements that support the long-term welfare of the person you’re representing.
Understanding No Win No Fee Agreements
Many personal injury and medical negligence claims are conducted on a No Win No Fee basis. It’s important to understand the terms of such an agreement as it will outline any financial obligations that might arise if the case is won. Part of your duty will involve ensuring that any deductions from the compensation for legal fees are acceptable and in the best interest of the person you represent.
Seeking Financial Advice
Given the financial complexities that can accompany compensation claims, seeking professional financial advice might be necessary to ensure the claimant’s interests are fully protected. This could include advice on investing compensation, planning for future care needs, or managing ongoing expenses.
Overall, the financial responsibilities of a litigation friend are integral to ensuring that the process not only results in justice for the claimant but also their financial interests are protected.
Ending The Appointment of A Litigation Friend
The role of a litigation friend is significant, but it doesn’t last forever. Understanding when and how this role concludes is important for both the litigation friend and the individual they represent.
Here’s what you need to know about ending this appointment:
- Completion of legal proceedings – Typically, the role of a litigation friend concludes when the compensation claim is resolved. This could be through a court decision, settlement, or another conclusion that effectively ends the legal process.
- Reaching majority – If the litigation friend represents a child under 18, the appointment usually ends when they reach 18, at which point they are considered capable of handling their own legal matters.
- Recovery of mental capacity – In cases where the litigation friend represents somebody due to their lack of mental capacity, the role might end if the individual regains the capacity to make decisions on their own.
- Court decision – The court can also decide to end the appointment of a litigation friend. This might happen if the court finds that the litigation friend is no longer acting in the best interests of the person they represent or if a more suitable person is found to take over the role.
- Application for discharge – A litigation friend or another interested party can apply to the court to discharge the litigation friend from their duties. This might be due to various reasons, such as the litigation friend’s wish to step down or the emergence of new information suggesting somebody else would be more appropriate for the role.
When the appointment of a litigation friend ends, it’s essential to ensure that the transition is smooth and that the individual continues to have the support they need, especially if the claim has not been fully resolved or if they require ongoing assistance. This might involve transferring responsibilities to the individual (if they’ve come of age or recovered mental capacity) or to a new litigation friend or legal representative appointed by the court.
FAQs About Litigation Friends
What is a litigation friend?
A litigation friend is someone appointed to represent and make decisions for a claimant who cannot manage their legal affairs due to age, incapacity, or severe illness during legal proceedings.
Who can be appointed as a litigation friend?
Parents, guardians, family members, professional advocates, Court of Protection deputies, and individuals with a lasting power of attorney over the claimant’s affairs can serve as litigation friends.
How is a litigation friend appointed?
A litigation friend can be appointed by the court or apply directly to represent the claimant. The court must approve the appointment to ensure the litigation friend acts in the claimant’s best interests.
Can a litigation friend make decisions without the claimant’s input?
A litigation friend should consider the claimant’s wishes and feelings as much as possible. However, they ultimately must make decisions based on the claimant’s best interests, especially when the claimant cannot express their wishes or fully understand the implications.
Does a litigation friend need legal knowledge?
While legal knowledge is beneficial, a litigation friend does not need to be a legal expert. They must, however, be capable of making informed decisions based on legal advice and act in the best interest of the claimant.
Are litigation friends financially responsible for legal costs?
Litigation friends are not typically personally liable for the claimant’s legal costs unless they act improperly. In No Win No Fee claims, legal fees are usually covered by an agreed percentage of the compensation awarded if the claim is successful.
When does the role of a litigation friend end?
The role generally concludes when the legal proceedings are finished, if the claimant regains the capacity to manage the claim themself, when a child reaches 18 years of age, or if the court decides to end the appointment for another reason.
Can a litigation friend be replaced?
Yes, if circumstances change or if it’s in the claimant’s best interests, the court can appoint a new litigation friend to replace the current one, following an application and review process.
Starting The Litigation Friend Process
Whether you are considering becoming a litigation friend or you’re somebody who might benefit from having one and would like expert advice from a personal injury solicitor, please contact us for a free consultation today.
During the consultation, our team could also assess the chances of a successful claim and provide legal advice free of charge. If a claim is viable, one of our solicitors could take it forward under a No Win No Fee agreement, which means:
- There are no upfront costs.
- Legal fees are only due if the claim is successful.
For further information about the litigation friend process or any other questions, feel free to call us on 0800 6524 881 or use our live chat service to connect directly with one of our specialist advisors.