Key Facts
- •Appeal against an interim case management decision dismissing an application by a litigation friend (Ms Cowell) to be discharged from her role.
- •Ms Cowell cited mental health issues and inability to cope with the stress of litigation.
- •The underlying claim was for breach of contract, with a value of £46,438 plus interest.
- •Mr Major, the appellant, lacked capacity to litigate.
- •The trial proceeded with Ms Cowell as litigation friend and resulted in judgment for the respondent.
- •Ms Cowell's application to be discharged was dismissed, and she was ordered to pay costs.
- •The respondent's solicitor's conduct was alleged to be aggressive and unhelpful, contributing to Ms Cowell's mental health deterioration.
Legal Principles
Duties of a litigation friend: act for the benefit of the individual and safeguard their interests.
CPR 21.4, PD21 (revoked but relevant at the time), Gov.UK website guidance
Termination of a litigation friend's appointment: The court's discretion, not automatic; primary focus on whether the litigation friend continues to satisfy CPR 21.4(a) and (b).
CPR 21.7, Shirazi v Susa Holdings [2022] EWHC 477 (Ch), Bradbury v Paterson [2014] EWHC 3992
Consent is a fundamental requirement for a litigation friend’s appointment and must continue throughout; lack of consent creates a conflict of interest.
CPR 21.4(3), PD21 (form N235), Bradbury v Paterson [2014] EWHC 3992
Costs orders against litigation friends: Jurisdiction derived from s.51 of the Senior Courts Act 1981; factors justifying an order include bad faith, improper or unreasonable behaviour, and prospect of personal benefit.
Glover v Barker [2020] EWCA Civ 1112, Bushby v Galazi [2022] EWHC 136 (Ch)
Outcomes
Appeal allowed.
The Judge erred in law by not prioritizing the CPR 21.4(3) criteria (consent and ability to competently and fairly conduct proceedings) when considering the application to discharge the litigation friend. The Judge's balancing exercise gave undue weight to the imminence of the trial date and insufficient weight to Ms Cowell's mental health issues and lack of consent.