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Why do I need a Litigation Friend?

22 Jul 2021

At Hay & Kilner we often receive instructions to pursue compensation claims where the injured party is either a child or a protected party. Both children and protected parties will require the assistance of a litigation friend throughout their case.

Litigation Friend

A litigation friend is someone who is appointed to act on behalf of a child or protected party to bring a claim for compensation. This can apply to both clinical negligence and personal injury claims. A protected party is an adult who lacks the mental capacity to manage their own case; and a child under UK law is a person under the age of 18 years.

Primary Duties

It is the duty of the litigation friend to act fairly and competently throughout the conduct of the case on behalf of the child or the protected party. In short, their primary duties are to:

  • make decisions in the best interests of the child or protected party.
  • establish the wishes and feelings of the child or protected party and keep them informed of what is happening in their case
  • talk to the solicitor about the status of the proceedings throughout the case, receive advice and provide instructions.
  • pay any costs ordered by the court

Who can be a Litigation Friend?

There are a number of people who can be appointed to act as a litigation friend. These include but are not limited to:

  • a parent or guardian
  • a family member or friend
  • a spouse
  • a court of protection deputy
  • someone who has a lasting or enduring power of attorney

 

Friends hands

How is a Litigation Friend appointed?

The vast majority of claims are investigated, pleaded and settled without the need to issue court proceedings. In those circumstances the litigation friend acts on an informal basis. However, if a case is settled before court proceedings are issued, an application will need to be made to the court to have the compensation award approved by a judge. In those circumstances, the solicitor will make an application to the court to have the litigation friend appointed on a formal basis. The same applies if it becomes necessary to issue proceedings in the event the defendant does not accept liability and the case is contested.

Approval Hearing

An approval hearing takes place after a claim has been settled on behalf of a child or protected party.  The case will be presented before a Judge whose job it is to consider whether the amount of compensation that has been offered by the defendant and has been accepted is appropriate. This is an extra step which is put in place to protect the child or protected party’s interests.

The solicitor will create a bundle of documents for the court including the medical evidence and an Advice from a barrister. The hearing usually takes place in the child’s local county court but, more recently, due to Covid restrictions, have been taking place remotely via video or telephone link. The solicitor, litigation friend and the child will usually attend.

It is important to note that the Judge will never reduce an award previously agreed by the parties but they may, if they consider it appropriate, refuse to approve it if they feel that the agreed damages are insufficient to compensate the claimant for their injuries.

For more information on any of the above, or any potential claim you may have, please contact Helen Morland, helen.morland@hay-kilner.co.uk, or a member of our Clinical Negligence team on 0191 232 8345.