Anyone who suffers a physical or psychological injury due to the negligence of another person or entity should be able to claim compensation. In general, the victim will contact a solicitor and start a personal injury claim, but that is not always the case.
If the victim is a child or a protected party, they will need a competent adult to represent them and claim on their behalf. This person will become their litigation friend and will be able to make decisions regarding the claim and compensation offers.
Any person over 18 could be a litigation friend as long as they can fulfil the role fairly and competently, but most often, a family member or close friend will claim on behalf of the victim. If no one is available to take on this role, the court may ask the official solicitor to step in.
What is a litigation friend?
A litigation friend is an adult who helps someone else make a personal injury claim if they cannot handle the matter themselves. The litigation friend will make decisions about the legal case while keeping the victim’s best interests in mind.
The litigation friend process is used to claim on behalf of children younger than 18 or adults who cannot handle their own legal affairs. Usually, a parent, sibling, or close friend will take over the case.
Any person who can fairly and competently conduct proceedings could apply to represent a loved one in a personal injury claim. They will have complete authority over the legal proceedings but should always consult with the victim and act according to their wishes when possible.
The litigation friend has many responsibilities, including attending court hearings and meeting with solicitors. They can also collect and present evidence, speak to witnesses and decide whether to accept a settlement offer.
Personal injury claims can be stressful and demanding for both litigation friends and the victim they represent. Some cases may take many years to settle, so you should think carefully about whether you are ready to take on this responsibility.
Who may need a litigation friend to make a personal injury claim?
If an injured person cannot fight for their rights and pursue a compensation claim, they will need a litigation friend to conduct proceedings on their behalf. There are two groups of people who need litigation friends to make a personal injury claim:
Children are not considered to have the same well-formed judgement as adults, so they are not allowed to use solicitors to pursue compensation or make legal decisions about a claim. If a litigation friend did not claim on their behalf before turning 18, they would have another three years to take legal action as an adult.
An adult who is not capable of managing their case either with or without a solicitor is considered a protected party. According to the Mental Capacity Act 2005, an adult is regarded as a protected party if they suffer from:
- Post-traumatic stress disorder
- Severe sleep deprivation
- A learning disability
- A mental illness
- An intellectual disability
- A neurological disorder
- A stroke or traumatic brain injury
You could also conduct legal proceedings on behalf of an individual whose first language is not English and who might have difficulties communicating with their solicitor.
Who can be a litigation friend?
Any individual over 18 can be a litigation friend and claim on someone else’s behalf, as long as they:
- Can conduct legal proceedings fairly and competently
- Their interests do not conflict with the victim’s
Anybody who is in the best position to look after the victim’s best interests could be appointed as their litigation friend, including:
- One of the parents
- Another family member or close friend
- A legal guardian
- A social worker
- A Court of Protection deputy
- A solicitor
- A professional advocate
- Someone else with a lasting power of attorney
In certain circumstances, an individual may not be able to claim on behalf of a loved one. For example, if a child was hurt in a car accident and one of the parents was driving the vehicle, this may give rise to a conflict of interest.
Can a solicitor be a litigation friend?
A litigation friend is usually a parent, family member or close friend, but if no one is willing to take on the responsibility, a solicitor can be asked to act on the victim’s behalf. If they are willing to take on the role, the court will confirm their suitability before appointing them.
The official solicitor can also act on the victim’s behalf if:
- No one else is willing or suitable to be their litigation friend;
- There is money available to pay their fees, for example, through legal aid;
- A medical professional confirms that the victim lacks the mental capacity to conduct proceedings.
The official solicitor will only accept an appointment to act as a litigation friend if there is a suitable guarantee that the costs incurred by external solicitors will be met from the victim’s assets or through a no win no fee agreement.
Who appoints a litigation friend?
A person can apply to act as a litigation friend or be directly appointed by the court on its initiative or following a request from another individual involved in the case.
Before appointing a litigation friend, the court will ensure that they meet some criteria, namely:
- They can fairly and competently conduct legal proceedings on behalf of the victim;
- Their interests do not conflict with those of the victim;
- They undertake to pay any costs incurred during the proceedings subject to any repayment they might be entitled to.
If nobody is willing or suitable to take on this role, the court may appoint the official solicitor. The official solicitor is a Ministry of Justice representative and acts as a litigation friend of last resort for children and adults who lack the mental capacity to manage their affairs.
If you are requesting the court to appoint someone as a litigation friend, you must provide evidence that the person in question:
- Agrees to act as a litigation friend on behalf of a child or protected party
- Is suitable and willing to take on the role
- Can carry out the required duties
What is the role of a litigation friend?
When helping someone with a claim, the litigation friend must act fairly and competently and always have the victim’s best interests in mind. They must never make decisions in their own interests.
Becoming a litigation friend brings many responsibilities, so you should carefully consider whether you are willing to commit to this role. Some of the duties of a litigation friend include:
- Make decisions regarding the claim
- Keep updated on the proceedings
- Attend court hearings
- Pay any fees ordered by the court
- Liaise with the claimant’s solicitor
- Sign legal documents and deal with correspondence
- Instruct solicitors and take legal advice
- Keep the victim updated on proceedings if possible
- Make sure the claimant attends medical appointments
- Try to find out the victim’s wishes and feelings
- Carefully consider any settlement offers
If you settle out of court, you might also need to attend an Approval Hearing. A judge will consider the available evidence to ensure the compensation agreed between the parties is reasonable. The victim may also need to attend the hearing, depending on their age and the severity of their injuries or illness.
How do I become a litigation friend?
There are two ways in which you could become a litigation friend for a loved one:
- You may be directly appointed by the court or by request of another individual involved in the case.
- You can apply to be someone’s litigation friend on your own initiative. To do so, you would usually need to follow the following steps:
- Fill in a certificate of suitability, explaining why you are appropriate for the role;
- If you are applying to act for a child, send a copy of this certificate to their parents, guardian, or carer. If you want to become a litigation friend for a protected party, send a copy of the certificate of suitability to their carer, deputy, attorney, or the victim themselves;
- Fill in a certificate of service, confirming that you fulfilled the first two steps;
- Send both certificates to the court with your claim.
You do not have to worry about applying and finding accurate paperwork. A personal injury solicitor will be able to help you complete both certificates, send them to the relevant people and keep you informed at every step of the way.
If you are already acting as the victim’s deputy, this permits you to act as their litigation friend without following the steps above. Instead, you only have to provide a copy of the court order that appointed you as deputy, together with the claim form.
If you want to become a litigation friend, enter your details into our online claim form or call 0800 678 1410 to speak to a legal adviser. An experienced solicitor can help you fill in and deliver the relevant paperwork and provide support and advice at every step of the claims process.
When does the litigation friend role end?
A litigation friend takes on a serious and, in many cases, long-lasting responsibility. Typically, you will continue to act as a litigation friend as long as the claim is in progress, and your role will end when:
- The child turns 18, and they can handle their affairs themselves. When the victim becomes an adult, they must write a statement informing everyone involved in the case that you have stopped being their litigation friend and whether they are going to proceed with the claim.
- The protected party you represented regains their mental capacity. In this case, you or the victim can apply to the court for an order to release you from your duties, providing medical evidence that they have regained capacity.
- The claim comes to an end.
- You or someone else applies to the court for a replacement with a valid reason, for example:
- The current litigation friend is not acting in the child’s best interests;
- They can no longer fulfil their duties due to an illness or because they have moved away;
- They have died.
Is a litigation friend liable for costs?
The central duty of a litigation friend is to direct the legal proceedings and ensure that any decisions about the claim are made in the best interests of the person for whom they are acting.
However, they must also agree to pay any costs the claimant may be ordered to pay during the claims process, subject to any repayment they might be entitled to. It is thus essential to seek legal advice before bringing a claim on behalf of another person.
If their claim has merit, you will likely be offered a no win no fee agreement. This way, you can take legal action on behalf of a loved one without incurring out-of-pocket expenses if your case is unsuccessful.
For a free consultation with a legal adviser, call 0800 678 1410. They can let you know if you have a valid personal injury claim and how you can become a litigation friend. They will also answer any questions you might have about the process.