Litigation capacity and litigation friends – news from the civil courts

In a judgment relating to the business affairs of the Hinduja family (Hinduja v Hinduja & Ors  [2020] EWHC 1533 (Ch)) Falk J, sitting in the Chancery Division, has undertaken an important analysis of when, precisely, medical evidence is required to support the proposition that a party in civil proceedings requires a litigation friend, as well as the circumstances under which it can properly be said that a person should not be a litigation friend.[1]

The proceedings were brought under Part 8 of the Civil Procedure Rules to determine the validity and effect of two letters.   Through an oversight, however, the Claimant’s advisers did not file a certificate of suitability from the Claimant’s daughter at the time, as required by CPR r. 21.5. Such a certificate was filed, and Falk J had to consider whether and how to regularise the position.   For technical reasons which are immaterial here, she took the view that the better course was to make a fresh order to appoint his daughter, Vinoo, as litigation friend under CPR r.21.6. There were two preconditions to the exercise of that power: (1) that the Claimant, SP, was a protected party and (2) whether Vinoo met the conditions set down in CPR r.21.4(3) to be a litigation friend. Were she to make such an order, Falk J would then make an order regularising the position under CPR 21.3(4) (and the Defendants, whilst challenging the two pre-conditions noted above, did not challenge the making of such an order if they were met).

Was SP a protected party?

The core submission of the Defendants was that the court did not have sufficient evidence to conclude that SP lacks capacity to conduct the proceedings. It was submitted that the information contained in the certificate of suitability did not properly address the tests in the MCA 2005, and no medical evidence was provided. Relying upon Masterman-Lister v Brutton [2003] 1 WLR 1511, the Defendant submitted that SP’s Article 6 ECHR rights were engaged, and the court should require medical evidence to be provided.

Especially in cases before the civil courts, it has been a working assumption that medical evidence was required. However, as Falk J noted,

37. There is no requirement in the [Civil Procedure Rules] to provide medical evidence. The absence of any such requirement was commented on by Chadwick LJ in Masterman-Lister at [66]. There is no reference to medical evidence in CPR 21.6. The only reference to medical evidence is in paragraph 2.2 of PD 21, which applies where CPR 21.5(3) is being relied on. That requires the grounds of belief of lack of capacity to be stated and, “if” that belief is based on medical opinion, for “any relevant document” to be attached. So the Practice Direction provides that medical evidence of lack of capacity must be attached only if (a) it is the basis of the belief, and (b) exists in documentary form. It does not require a document to be created for the purpose.

Falk J considered that references by the Court of Appeal in Masterman-Lister and the later case of Folks v Faizey [2006] EWCA Civ 1381 to medical evidence being needed in almost every case were not:

39. [….] intending to lay down any rigid principle under which medical evidence is required unless the circumstances are exceptional. The question will always depend on what the circumstances are. For example, Folks v Faizey was a personal injury claim where the claimant had suffered a severe head injury in a road traffic accident. The issue of capacity arose during the proceedings, the Court of Protection was involved (which would have required at least some medical evidence in any event), and there was a real dispute between medical experts about whether the claimant had capacity. The need for medical evidence was obvious. Similarly in Masterman-Lister, which like Folks v Faizey related to serious injuries following a road traffic accident, there was a real issue about capacity.

Falk J also considered that the suggestion in Baker Tilly v Makar [2013] COPLR 245 that medical evidence would ordinarily be required was, again, related to the factual context.   Baker Tilly was, she considered, an “extraordinary case where a judge had concluded that a litigant lacked capacity based on her behaviour in the course of the proceedings. That is not something that the court is ordinarily in a position to do.”  By contrast, in this case,

41. […] the certificate was provided by a close family member. Vinoo lives with her parents and cares for them daily. There can be no one who is in a better position to comment on whether her father has capacity to conduct the litigation. The certificate of suitability confirms that her father is no longer able to give instructions to lawyers and has asked her to do so. The fact that he may have capacity to ask her to act in the litigation does not mean that he has capacity to conduct proceedings. As explained in Masterman-Lister at [74] and [75], questions of capacity are issue specific.

Falk J also considered that:

44. The wording of the certificate amounts to confirmation that SP is not able to make decisions for himself in relation to the proceedings because of an impairment. The confirmation is specific to the proceedings and in my view sufficiently addresses the test in s 2(1) of the 2005 Act.

45. I also do not accept Mr Rees’ suggestion that the evidence must expressly address each of the tests in s 3 of the 2005 Act, that is SP’s ability to understand, retain and use or weigh information, or to communicate decisions (tests which I note are, in any event, expressed in the alternative: a person lacks capacity if any one of them is not met). The certificate confirms that SP is not able to give instructions to lawyers. In the context of a clear statement that SP lacks capacity to conduct the proceedings due to disease, I think that addresses the statutory test.

In the context of the case itself, Falk J noted that there was no evidence that actually contradicted the evidence that SP lacked capacity to conduct the proceedings. Nor did she consider it necessary, or in accordance with the overriding objective, to require medical evidence to be produced.

Suitability of litigation friend

In order to appoint Vinoo as SP’s litigation friend, Falk J had to be satisfied that (a) Vinoo could fairly and competently conduct proceedings on SP’s behalf, and (b) she had no interest adverse to that of SP. (There was no dispute that Vinoo had provided the required undertaking to pay costs).   The Defendant’s case was that the tests in CPR 21.4(3)(a) and (b) are not met. The Defendants maintain that Vinoo has her own separate financial interest in pursuing the proceedings, and that she would not be in a position to form an independent and objective judgment about the merits of the claim and SP’s best interests. The correct course, the Defendants submitted, would be to appoint an independent professional or the Official Solicitor.

Falk J undertook a detailed analysis of the case-law, in particular the decision in R (Raqeeb) v Barts NHS Trust [2019] EWHC 2976 (Admin), in which MacDonald J had stressed the need for the litigation friend to approach the litigation with objectivity. Falk J suggested, however, that:

59. […] some caution is required in relation to MacDonald J’s comments about objectivity. It should also not be assumed that a relative with a financial interest is necessarily debarred from acting as a litigation friend.

60, The comments made about objectivity were obviously made in the context of the facts of that case. The key tests to apply are those set out in the rules. In conducting litigation fairly and competently on behalf of a protected party, it is obvious that a litigation friend must acquaint him or herself with the nature of the case and, under proper legal advice, make decisions in the protected party’s best interests. Being “objective” in this context cannot mean independent or impartial vis-à-vis both parties to normal adversarial civil litigation. The litigation friend is acting on behalf of the protected party. Any objectivity required must relate to the litigation friend’s ability to act in the protected party’s best interests, and in doing so listen to and assess legal advice, and properly weigh up relevant factors in making decisions on the protected party’s behalf.

Falk J continued:

61.. The requirement not to have an adverse interest is closely linked to the requirement that the litigation friend can fairly and competently conduct the proceedings. Any adverse interest would obviously risk compromising the litigation friend’s ability to act fairly in the protected party’s best interests, or at least risk giving the appearance of doing so. For example, in Nottinghamshire County Council v Bottomley [2010] EWCA Civ 756 a litigation friend who was subject to a conflict of interest as between the local authority who employed her and the child she was representing was removed. Stanley Burnton LJ made the point at [19] that a litigation friend must be able to exercise some independent judgment on the advice received, and it would be unfair to expect the litigation friend to choose a form of settlement most unfavourable to her employer. He also said that the principle that justice must be seen to be done requires the litigation friend not to be seen as having a conflict.

62. Whether the existence of a financial interest on the part of the litigation friend should debar them from acting will depend on the nature of the interest, and whether it is in fact adverse or whether it otherwise prevents the litigation friend conducting the proceedings fairly and competently on the protected party’s behalf. A person is not prevented from being a litigation friend simply because they have a personal interest in the proceedings. It would, for example, be relevant if any personal interest that the litigation friend had meant that he or she could not approach the litigation in a balanced way, in the sense of not being able to weigh up legal advice and decide what should be done in the protected party’s best interests. But it would be highly unlikely that a litigation friend would be unable to do so simply because he or she has an interest in the proceedings, in circumstances where that interest is aligned with that of the protected party.

Finally, Falk J agreed with the observations of Laurence Rabinowitz QC sitting as a Deputy High Court Judge in Davila v Davila [2016] 4 WLUK 347, that the fact that the litigation friend has his own independent interest or reasons for wishing the litigation to be pursued ought not, in general, to be a sufficient reason for impeaching the appointment, because such an interest would generally run in the same direction as the protected party rather than being adverse to his interests. She also agreed with his observation that the reference to being able fairly and competently to conduct the proceedings was aimed at ensuring that the litigation friend has the skill, ability and experience to be able properly to conduct litigation of the sort in question, but that in general the court should not be required to conduct an enquiry extending far beyond that, considering unproven allegations not directly related to the matters giving rise to the litigation.

On the facts of the case before her, Falk J concluded that there were no good grounds to indicate that Vinoo could not fairly and competently conduct proceedings on SP’s behalf.   As against the Defendants, she observed:

66. SP’s litigation friend will not, and indeed cannot, be impartial: he or she is conducting adversarial proceedings on behalf of the protected party. What is required is that the litigation friend acts in the protected party’s best interests.

Falk J also took into account that SP had chosen Vinoo as one of his attorneys under lasting powers of attorney for both his property and financial affairs, and health and welfare, under powers of attorney made in June 2015. As such, Falk J observed, “she has a duty to act in his best interests. The fact that she was appointed to these roles by SP is also a strong indication that he trusted her to act in his best interests, and indeed to do so in all aspects of his life. Obviously this does not automatically qualify Vinoo to act as a litigation friend, but it is of some relevance” (paragraph 67).

Interestingly, Falk J found that the fact that (depending upon how proceedings unfolded), Vinoo might be required in due course to give evidence “cannot sensibly prevent her from acting as a litigation friend. As already indicated, there is no requirement for independence and there is no basis to suggest that acting as a witness means that she cannot fairly conduct proceedings on her father’s behalf, or that she has an adverse interest” (paragraph 79).

One other point of particular note was that:

85. […] it is the court that will ultimately decide the effect of the [key] letter, making its decision on the facts and law in the normal way. In the same way that in Raqeeb XX’s religious views were not relevant to the substantive issues before the court, Vinoo’s motivations will not be relevant to the decision that the court makes, and the court will in any event want to hear both sides of the argument (Raqeeb at [36] and [41]). Furthermore, the question of SP’s own subjective views or wishes (whether in July 2014 or subsequently), and the extent (if at all) to which that question is relevant, will be matters to be determined by the trial judge on the evidence.


Falk J’s careful analysis of whether, and why, medical evidence is required before a court can conclude that a party is a protected party is important. Perhaps reflecting the traditional deference shown by civil courts to medical expertise in the context of capacity (a deference not shared by judges of the Court of Protection with their increasing familiarity with the concept), it seems usually to have been understood that medical evidence was required.  However, as Falk J makes clear, the CPR (and, for that matter, the FPR and the Court of Protection Rules) have no requirement for medical evidence. It will – and should – be a matter for the judge to determine in the circumstances of the case before them whether there is a need for medical evidence to enable them to determine whether an individual is a protected party.

Similarly, Falk J’s analysis of the obligations upon a litigation friend (and hence the determination of suitability to be a litigation friend) is nuanced and careful. Caution may, though, be required in translating them across to the avowedly inquisitorial jurisdiction of the Court of Protection, where, traditionally, the litigation friend for P does seem to be treated as under a duty dispassionately to examine where P’s best interests lie, no matter how those issues are framed by the other parties (see, for instance, the reference by Charles J in Re UF [2013] EWHC 4289 (COP) to the need for the litigation friend to be able to take “a balanced and even-handed approach to the relevant issues,” endorsed by Baker J in B v D [2016] EWCOP 67). Whether, of course, (1) a litigation friend is in fact under a duty to act in MCA best interests; and (2) whether (even if they are) that requires them to act as gate-keeper to determine what arguments to advance on behalf of P, are different questions, addressed here.

[1] The case also concerned consideration of restricting access to court documents, not considered here.

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