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Folks v Faizey, Court of Appeal, 6 April 2006

20 April 2006
The issues

Litigation friend – mental capacity – Masterman-Lister test – extent to which other party to litigation should be entitled to oppose Application for next friend.

The facts

The Claimant had a claim for damages against the Defendant which came out of a road traffic accident in which the Claimant suffered a very serious head injury. Liability was compromised on the basis that the Defendant would pay 79% of the assessed damages. the Claimant was accepted as a patient by the Court of Protection and a receiver was appointed. Medical concerns were expressed about the Claimant’s difficulty in managing his own affairs. The Claimant’s sister agreed to act on his behalf and an Application was made to appoint her as litigation friend. The Application was opposed by the Defendant which relied on the evidence of a neuropsychiatrist. The Claimant’s Application was supported by a neuropsychiatrist of the Claimant’s own instruction. The matter came before the Judge who decided that the Application for the appointment of the litigation friend be adjourned pending the trial of a preliminary issue as to whether the facts justified the appointment of a litigation friend. The Claimant appealed to the Court of Appeal.

The decision

CPR Rule 21.6 entitled the Court to make an Order appointing a litigation friend. Such an Application could be made by a party. The Order provided for an Application for an Order appointing a litigation friend should be supported by evidence. In Masterman-Lister the issue before the court was whether the Court could regularise the position retrospectively where the issue of capacity has arisen when a decisive steps has already been taken. In that case the claim had been compromised before a litigation friend had been appointed and the Claimant sued the solicitors who had compromised the claim. It was held that the Court could regularise the position retrospectively provided everyone had acted in good faith and that there had been no manifest disadvantage to the party subsequently found to have been a patient at the material time. The Court emphasised that the final decision as to capacity rests with the Court but that in almost every case the Court would need medical evidence to guide it. In Masterman-Lister the distinction between capacity to litigate and the capacity to manage affairs was an important issue. Consideration was also given to the question as to whether the Court should regularise an Act retrospectively. The Court of Appeal was not however in that case seeking to promote or encourage routine satellite litigation to determine the issue of whether or not it was appropriate for a litigation friend to be appointed. In this case the Application to appoint a litigation friend had been made in good faith by a solicitor mindful of his responsibilities and supported by a close member of the Claimant’s family by the Claimant himself and by responsible medical evidence. The Application was made to protect the position of the Claimant and those advising him. The Rules as to capacity were not designed to create additional litigation. In this case those who advised the Defendant, without any plausible reason in terms of protecting the Defendant’s own position, sought to interfere in a procedure with which they were only minimally concerned. Whilst it would not be right to describe the opposition as an abuse of the process of the Court it was an intermeddling for no sound reason which the Judge, on the evidence available, ought not to have tolerated.

In this case the expense of dealing with this issue is contrary to the overriding objective of enabling the Court to deal with cases justly. A requirement which the Judge understood to work on the basis of the medical evidence dealing not in these circumstances require a full enquiry into the distinction between capacity to litigate and the capacity to manage. There might be cases in which issues arising from that distinction needed to be resolved but this was not one of them.

Appeal allowed.


Lord Justice Wilson added a procedural note to the effect that in cases such as this one thought would be needed as to whether the party needed to be served with the Application for an Order for the litigation friend’s appointment. The general rule was that a copy of an Application Notice had to be served on each “Respondent” but CPR 23.1 defined a Respondent as “A) The person against whom the Order is sought and B) such other person as the Court may direct”. In that the Order was not sought against the Defendant the Court would need to consider in the light of the fact of each case whether there was any need to direct service upon it.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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