There are two categories of party to legal proceedings that cannot conduct or defend litigation on their own behalf; those who are suffering from mental incapacity and those who are under the age of 18 at the time the proceedings are proposed or started. A person who is mentally incapacitated is now termed a "patient" for the purposes of the court rules. In the context of a trust, it is common to find that the beneficiaries are under the age of 18 and in their capacity as such, may be relevant parties for the purposes of trust litigation in all its various forms.

The court rules specify that litigation has to be conducted by a "litigation friend" on behalf of the patient or child, whether such party is claimant or defendant. A child can in exceptional circumstances apply to court for an order that he or she can conduct or defend proceedings on their own behalf without a litigation friend, but a patient cannot.

Without an order of the court
As long as a person has no interest contrary to that of the child and can fairly and competently conduct proceedings on behalf of the child, for which see CPR rule 21.4(3), then a person can become a litigation friend. He can do so without a court order but he must file a certificate of suitability with the court, confirming that he meets the requirements of rule 21.4(3), either at the time the claim is filed at court or at the time he takes the first step in the proceedings on behalf of a defendant child. The certificate of suitability must be served on every person on whom the claim form should be served and the litigation friend should serve a certificate of service at court when he files the certificate of suitability. Any step taken by the litigation friend in the proceedings before these formalities have been complied with is ineffective unless the court orders otherwise.

With an order of the court
An application can be made to court to appoint a litigation friend. Such an application must be supported by evidence indicating that the proposed litigation friend meets the requirements of rule 21.4(3). The application can be made by the person who wishes to be litigation friend or by any of the parties to the proceedings. It is the convention that applicants not only seek an order that a litigation friend is appointed, but also that a specific individual is appointed as such.

Costs
A litigation friend who undertakes to conduct proceedings on behalf of a child must also undertake to pay any costs which that party may be ordered to pay in relation to the proceedings, subject to the litigation friend's ability to be reimbursed from the child's assets. The litigation friend's liability for costs continues until the earliest of the following: the conclusion of proceedings or such time as the court terminates his appointment or notice has been served that his appointment has ceased upon the child attaining the age of majority, for which please see below.

Termination of appointment
Whether a person has become litigation friend with or without a court order, the court retains the power to terminate the appointment and substitute that litigation friend with another. The court also retains the power to direct that a person may not act as litigation friend. Any application for such orders must be supported by evidence.

When a child reaches the age of 18, the litigation friend's appointment ceases and the child on whose behalf the appointment has ceased must serve a notice on all the other parties to that effect, stating his intention or otherwise to continue to participate in the proceedings on his own behalf.

This note is intended to provide general information and is not intended to be comprehensive nor to provide specific legal advice and should not be acted or relied upon as doing so. For further information, please contact any member of the Trusts & Fiduciary Disputes Team.