The Duties of a Litigation Friend

The duties of a Litigation Friend

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 require the assistance of a litigation friend throughout the conduct of 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 completely 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:

• Parent or guardian
• Family member or friend
• Spouse
• Court of protection deputy
• Someone who has lasting or enduring power of attorney

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 out of court 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.

Infant approval hearing

An infant approval hearing takes place after the child’s legal representatives or the court has settled a child’s injury claim. The child’s case needs to be put before a Judge who can confirm that the amount that has been offered by the Defendant is acceptable in the circumstances. This is an extra step which is put in place to protect the child.

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 since covid they have been taking place remotely

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 unless the defendant increases it.

The compensation is usually invested in the court funds office until such time as the child turns 18 but an application can be made to pay the compensation into an alternative account if it can be shown to be advantageous to do so.

Contact us if you need any help with your clinical negligence claim.