What Is A Litigation Friend And When Do I Require One In A Personal Injury Claim?
What is a litigation friend?
If you are a child (under the age of 18) or a protected party, it will be necessary for you to appoint what we call a Litigation Friend to act on your behalf if you wish to make a personal injury claim. A litigation friend can be a family member of a friend so long as there is not a conflict of interest in respect of a potential personal injury claim. For example, if you are a child and you were a passenger in a vehicle driven by a parent such as a father and you are involved in an accident with another vehicle, it would be sensible to appoint the child’s mother or another family member or friend as the Litigation Friend. The reason for this is that if there is a dispute as to which driver was responsible for causing the accident then a conflict of interest could arise as the child may wish to bring a claim against the father’s Insurer as an innocent passenger.
When do I need a Litigation Friend in a personal injury claim?
The reason that children need to appoint a Litigation Friend is that they are unable to make legal decisions themselves and a Litigation Friend needs to be instructed to act in the child’s best interest. If the claim settles whilst the child remains under the age of 18 any award of compensation will need to be approved by a District Judge at an Infant Approval Hearing. When preparing a case for the Hearing, it will be necessary for the Litigation Friend to file a certificate of suitability as a Litigation Friend to present to the Judge.
A protected party will be someone who is an adult (over the age of 18) but they are unable to manage their own affairs. This could be as a result of lack of mental capacity to make decisions, due to an illness which makes them lack capacity or if they have been seriously injured. A person would need to lack capacity under the Mental Capacity Act 2005 where they are unable to make a decision due to an impairment in the functioning of the mind or brain. This would often be someone who has suffered a brain injury.
Who would be a suitable Litigation Friend?
Usually where the injured person is a child, the Litigation friend will often be a parent or sibling or grandparent.
However where a child or protected party does not have any family members that would be a suitable Litigation Friend then they could use the Official Solicitor which is a Government run body.
What will a Litigation Friend have to decide?
A Litigation Friend needs to make decisions which would be in the best interests of the client. They will be required to sign legal documents and attend Court Hearings which would include an Infant Approval Hearing for children. They will need to liaise with the solicitors who act on behalf of the client to consider the legal advice and make decisions in the best interests of the client. For example if in a child claim the opponent makes an Offer of settlement, the Litigation Friend will need to discuss the legal advice with the solicitor acting for the client and make a decision as to whether to accept or reject a settlement. Any award of compensation for a child would nevertheless need to be approved by a District Judge at an infant Approval Hearing.
A Litigation Friend will also need to sign any funding documents for the Personal Injury Claim. If for example the claim is funded by way of a Conditional Fee Agreement then the Litigation Friend would need to sign this to represent the child or protected party for example.
If you wish to discuss your situation with our leading personal injury solicitors on behalf of your child or someone who lacks capacity, please call us today on 0808 252 5231 or request a call back online.