Litigation Friends

A court case (Litigation) is a complicated process. Anyone who is involved in Litigation, must understand the whole process and the advice they are given, so that they can give informed consent about the various stages of their claim, and also about whether to agree to ‘out of court’ Settlement Arrangements that are made between the parties to the claim.

In other words, a person must have the capacity to conduct Litigation.

The law presumes that an adult has Capacity to conduct Litigation, even if they need extra time and help to be able to understand enough to reach the informed decisions that the law requires. Conversely, the law presumes that a child (a person under the age of 18) does not have Capacity. In between, there are very many people who have different levels of capacity, who may nevertheless be involved in Litigation, as Claimants or Defendants.

If a person does not have Capacity, or if they lose Capacity during the course of Litigation, then they must have a Litigation Friend to conduct the case on their behalf.

A Litigation Friend steps into the shoes of the person who lacks Capacity and is therefore directly subject to all of the Rights and Duties that would apply if they were the Litigant.

Where Capacity arises as an issue, a medical report should be obtained to assess the person’s Capacity. Any settlement reached between the parties must also be approved by a Judge. If these protections are not put in place, then any settlement reached between the parties or any Judgment, may be set aside as invalid, and this is a likely outcome where the claim has obviously settled for much less than it was worth.

Under-settlement of damages can be a disaster for both parties. If the Judgment is set aside, they have to continue the Litigation until it is settled in a proper manner.

The person who lacks Capacity can only continue the Claim through a Litigation Friend, but such cases will only arise where the legal representative has failed to consider whether their client has Capacity, when they should have been on notice that this was a possibility, and as a consequence, the Litigation has not been conducted properly, as a consequence of which, they suffer a loss through a shortfall in compensation and/or the Litigation continues. If the loss cannot be met through this process, then it may be possible to recover the shortfall through a Professional Negligence claim against the legal representative.The team at Jackson Lees Solicitors are specialists in both Professional Negligence and in matters concerning Capacity.