Litigation friend: Explained

In the realm of law, a term that often surfaces, especially in civil proceedings, is ‘Litigation friend’. This term, while seemingly complex, is a crucial part of legal proceedings involving individuals who may not have the capacity to represent themselves. This article aims to dissect and explain this term in all its nuances, providing a comprehensive understanding of what a litigation friend is, their roles, responsibilities, and more.

Before delving into the specifics, it’s important to understand that the concept of a litigation friend is deeply rooted in the principles of fairness and justice. It ensures that every individual, regardless of their mental or physical capacity, has the right to fair representation in court. Now, let’s delve into the details.

Definition of a Litigation Friend

A litigation friend, in the simplest terms, is a person who represents someone else in court proceedings because the latter is unable to do so themselves. This inability could be due to various reasons such as age (if the person is a minor), mental incapacity, or physical disability.

The primary role of a litigation friend is to make decisions in the best interest of the person they are representing. They are expected to act fairly and honestly, and their actions should not be influenced by personal interests or gains.

Legal Basis for a Litigation Friend

The concept of a litigation friend is not arbitrary but is well-grounded in law. In the United Kingdom, for instance, the Civil Procedure Rules (CPR) Part 21 provides the legal basis for the appointment of a litigation friend. This rule ensures that individuals who lack capacity are not deprived of their right to fair representation in court.

Similarly, in the United States, the Federal Rules of Civil Procedure (FRCP) Rule 17(c) provides for the appointment of a ‘next friend’ or ‘guardian ad litem’, terms synonymous with a litigation friend. These rules underscore the importance of fair representation and the role of a litigation friend in ensuring this.

Who Can Be a Litigation Friend?

There are no hard and fast rules about who can serve as a litigation friend. It could be a family member, a friend, or a professional such as a solicitor. The key requirement is that the person should be able to fairly represent the interests of the person they are representing in court.

However, it’s important to note that the court has the discretion to approve or disapprove the appointment of a litigation friend. The court will consider various factors such as the proposed litigation friend’s understanding of the case, their relationship with the person they are representing, and their ability to make fair and unbiased decisions.

Roles and Responsibilities of a Litigation Friend

The roles and responsibilities of a litigation friend are manifold. They are expected to act in the best interest of the person they are representing, make decisions on their behalf, and ensure that the court proceedings are fair and just.

One of the key responsibilities of a litigation friend is to instruct the solicitor on the case. They need to provide clear and accurate instructions that reflect the best interests of the person they are representing. They are also responsible for making decisions about the course of the litigation, including whether to settle the case or proceed to trial.

Decision Making

As mentioned earlier, a litigation friend is responsible for making decisions on behalf of the person they are representing. These decisions could range from minor ones such as deciding on the dates for court hearings to major ones such as whether to accept a settlement offer or proceed to trial.

While making these decisions, a litigation friend must always keep in mind the best interests of the person they are representing. They should not let their personal interests or biases influence their decision-making process.

Communication with the Court

A litigation friend is also responsible for communicating with the court on behalf of the person they are representing. They need to ensure that all court documents are properly filled out and submitted on time. They also need to attend court hearings and represent the interests of the person they are representing.

Moreover, a litigation friend needs to keep the court informed about any changes in the circumstances of the person they are representing. For instance, if the person regains their capacity to represent themselves, the litigation friend should inform the court about this.

Appointment and Removal of a Litigation Friend

The appointment of a litigation friend is usually done by the court. However, the process and requirements for appointment can vary depending on the jurisdiction. In some cases, the person who lacks capacity may have already appointed a litigation friend in their will or other legal document.

As for the removal of a litigation friend, this can happen if the court determines that the litigation friend is not acting in the best interests of the person they are representing. The court can also remove a litigation friend if the person they are representing regains their capacity to represent themselves.

Process of Appointment

The process of appointing a litigation friend usually involves an application to the court. The application should include details about why the person needs a litigation friend and why the proposed person is suitable for the role. The court will then review the application and make a decision.

In some cases, the court may appoint a litigation friend on its own initiative. This usually happens when the court determines that the person lacks capacity to represent themselves and there is no one else suitable to act as their litigation friend.

Process of Removal

The process of removing a litigation friend is also usually initiated by an application to the court. The application can be made by the litigation friend themselves, the person they are representing, or any other interested party. The court will then review the application and make a decision.

If the court decides to remove a litigation friend, it will usually appoint a new one. The new litigation friend will then take over the responsibilities of the previous one and continue to represent the interests of the person in court.

Conclusion

In conclusion, a litigation friend plays a crucial role in ensuring that individuals who lack capacity are not deprived of their right to fair representation in court. They act as the voice of these individuals, making decisions on their behalf and ensuring that their interests are protected.

While the role of a litigation friend is challenging, it is also rewarding. It provides an opportunity to make a difference in someone’s life, ensuring that they are treated fairly and justly in court proceedings.

Become a Champion of Justice with Clear Legal

If you or someone you know requires a litigation friend to navigate the complexities of the legal system, Clear Legal is here to help. Our commitment to ethics, innovation, and quality ensures that every client receives the highest standard of representation, guided by our core values. We believe in making a positive impact and improving access to justice through technology. Take the first step towards fair and just representation by requesting a free consultation with our compassionate and dedicated team today.