We can act as Litigation Friends and ‘Rule 1.2 Representatives’ for someone who lacks mental capacity to be involved in court proceedings as a ‘litigant’ or a ‘party’ or where the Court wants someone to represent the person including by providing information about the person’s past and present wishes and feelings, the beliefs and values that would be likely to influence the decision the Court has to make on their behalf and any other factors that they would be likely to consider if they were able to do so.

Litigation Friends

A person involved in court proceedings (‘a litigant’ or ‘a party’) must have the capacity to conduct those proceedings, and so be able to participate in those proceedings as a party. For example, they must be able to decide whether or not to use a legal representative and if they choose to do so, they must be able to give instructions in regard to decisions that will be required during the proceedings or if they do not wish to use a representative, they must be able to complete the necessary paperwork, understand decisions and orders made by the judge, etc. This capacity is known as ‘litigation capacity.’ In all civil proceedings, if a party lacks litigation capacity then the court must appoint a ‘litigation friend’ to carry on the proceedings on their behalf. Because applications made to the Court of Protection seek a decision or declaration in regard to the best interests of a person who is assessed as lacking mental capacity to make their own decisions, if a person lacking capacity is made party to the proceedings by the Court then a litigation friend is necessary to direct the proceedings on the person’s behalf.

The litigation friend will either instruct a solicitor to act on behalf of the person who lacks capacity, or they can talk directly to the Judge to provide the views of the person they are assisting. A litigation friend can be a family member, an advocate or the Official Solicitor, known as the litigation friend of last resort, holding a public office and funded by the Government.

Part 17, section 1 of The Court of Protection Rules 2017 sets out more about the role of the litigation friend, including how they are appointed.

Our advocates may be appointed as a litigation friend to make decisions about a court case for either:

  • an adult who lacks the mental capacity to manage their own case at the Court of Protection, or;
  • a child at the Court of Protection or in relation to family proceedings.

This section will tell you about the litigation friend role and when we might act as someone’s litigation friend.

What is a 'litigation friend'?

A litigation friend takes the place of a person in the court process who is not able to say what they want to happen in their case, either because they are too young or because they lack mental capacity. A litigation friend is not a party to the proceedings of the court themselves, neither do they act as the person or child’s legal representative, rather they ‘direct the proceedings’ on the person or child’s behalf, including by:

  • making decisions about the case in the person or child’s best interests;
  • taking all practical steps to help the person or child to understand what is happening in the case and to find out their wishes and feelings in relation to handling the case;
  • talking to their legal representative about what is happening, obtaining advice from them and giving instructions to them in the person or child’s best interests.

While it is not the litigation friends’ role to undertake ‘detective work’ in relation to the facts or case being brought before the Court, it is important that the litigation friend focuses on representing the person or child that most appropriately fits with their known wishes, feelings, beliefs and values or other factors that would be likely to influence them, that the litigation friend can establish. Litigation friends therefore must be mindful where the person or child has very strong views which conflict with the litigation friend’s assessment of the relevant issue. Case law from the European Court of Human Rights has determined that where a litigation friend considers a point that the person or child wishes to make to be unarguable, the litigation friend is not bound to advance the argument.

‘Rule 1.2’ Representatives

A Rule 1.2 Representative refers to rule 1.2 in The Court of Protection Rules 2017, which sets out how the Court can best secure the participation of a person lacking mental capacity in the relevant proceedings. One of the ways to do this is by the appointment of a representative. Part 17, section 2 of the Court of Protection Rules 2017 sets out more about the role of the litigation friend, including how they are appointed. Generally when we talk about a Rule 1.2 Representative this is not the same as an accredited legal representative (although they can also be appointed under Rule 1.2 which may cause some confusion). A (non-legal) Rule 1.2 Representative can be a family member or friend who is considered to be appropriate to act as the person’s representative. Where a person lacking capacity does not have anyone appropriate to act as a representative, this is where we can take on this role.

The role of the representative is to secure the participation of the person by acting in a capacity that the Court may direct but usually by providing information as to the person’s past and present wishes and feelings, the beliefs and values that would be likely to influence their decision if they had capacity, and any other factors that they would be likely to consider if they were able to do so, in order to ensure that the person is placed as much at the centre of the decision the Court is making as possible. This information may often be provided in the form of a report.  

Part 17, section 2 of the Court of Protection Rules 2017 sets out more about the role of the litigation friend, including how they are appointed.

FAQs

1. How is a litigation friend appointed?

A person who wishes to become a litigation friend without a court order files a certificate of suitability using form COP 22. In the certificate of suitability, the litigation friend needs to: 

  • state that they consent to act;
  • state that they know or believe that the child or protected party lacks capacity to conduct the proceedings; and
  • state the grounds of their belief and, if this belief is based upon medical opinion,
    or the opinion of another suitably qualified expert, attach any relevant document to the certificate. 

Rule 143 sets out when and how the court may appoint a litigation friend, either on application or on its own initiative.

An application for an order appointing a litigation friend must be made by filing
a COP 9 application notice in accordance with the relevant procedure. The application must be supported by evidence that satisfies the court that the proposed litigation friend:

  • consents to act;
  • can fairly and competently conduct proceedings on behalf of the child or protected party; and
  • has no interest adverse to that of the child or protected party

2. Will My Rights accept liability for costs when acting as litigation friend?

My Rights will not accept liability for paying costs in relation to or ordered by the Court when acting in the litigation friend role. 

IF YOU THINK THAT SOMEONE YOU KNOW might need HELP FROM A litigation friend or representative, CONTACT US VIA THE ‘CONTACT’ LINK ABOVE OR CLICK ‘MAKE A REFERRAL’.