Alex RKMajor v Kirishana [2023] EWHC 1593 (KB) is a distinctly troubling case, in that it involved – at one stage – a person being effectively forced to continue acting as litigation friend in circumstances where she had made clear that she had developed mental health issues, could not cope with the stress of the litigation, could not properly discharge the role of litigation friend and no longer consented to the role. The underlying proceedings related to a claim for breach of contract in relation to (primarily) the payment of various loans brought against a Mr Major by a Ms Kirishana, with whom he had previously been in a relationship. Mr Major had mental health issues, the detail of which are not relevant for present purposes,[1] and, whilst he sought initially to act for himself in person, it became very clear that he lacked capacity to conduct them. Efforts were made by Mr Major’s parents to find a way in which to protect his interests in the face of robust efforts by HHJ Luba KC to progress the case. As Cotter J noted:
20. Shortly before a further hearing on 8thMarch 2021 Ms Cowell [a long-term friend of Mr Major’s] was approached by Mr Major’s parents and pro-bono counsel and asked if she would be Mr Major’s litigation friend. She was initially hesitant but eventually agreed and filled in (and filed) a certificate of suitability (dated 7thMarch 2021). She stated that she had known Mr Major for ten years and was extremely concerned about the effect the proceedings were having on him. She stated that in her opinion they were an extension of harassment which he had already suffered. The form required Ms Cowell to confirm that she consented to act as a litigation friend and that
“I am able to conduct proceedings on behalf of (Mr Major) competently and fairly…”
21. On 8thMarch 2021 His Honour Judge Luba QC declared that Mr Major lacked capacity and ordered that Ms Cowell be appointed as his litigation friend.
22. Given some references in subsequent statements/skeleton arguments on behalf of the Respondent it is important to understand its implications of the finding that Mr Major lacked the capacity to litigate. Capacity must be considered as at any given time/stage in within the litigation on all the available evidence. It is a binary issue. Capacity can be lost and gained, but if a person lacks capacity the proceedings should not continue. If they do so any step take may be of no effect. Whilst this may be frustrating for an opposing party and prevent the progress of the litigation that is of no weight at all in the assessment of capacity. Also the extent to which there is a person willing to act as a litigation friend is irrelevant when considering the question of capacity
23. I pause to observe that if Ms Cowell had not agreed to be the litigation friend then the litigation would have ground to a halt until a litigation friend was in place. It seems clear that (as is usually the case in my experience) the Official Solicitor would have been reluctant to act unless some arrangement as to her fees was in place. The Respondent may have been asked to give an indemnity (the likely response has not been indicated to me). So Ms Cowell’s appointment was no doubt welcomed by the Respondent.
Not helped by variously “mistaken,” “unnecessarily aggressive” and “inappropriate” emails from the solicitor acting for Ms Kirishana, Ms Cowell’s mental ill health started to suffer, to the point where she found herself unable to continue to act for Mr Major. At a hearing changed at the last minute from in-person to remote, at which Ms Cowell acted for herself and at which, as Cotter J observed, she should have been treated as vulnerable, HHJ Luba KC did not challenge the veracity or accuracy of her account, refused to discharge her, and ordered her to pay Ms Kirishana’s costs of the application.
Mr Major himself attempted to appeal the decision before Ms Cowell did. He also tried to seek an urgent non-molestation application against Ms Kirishana. At the appeal hearing, her Counsel described the step as follows:
On 10 June 2021, Mr Major despite purporting to lack capacity or funds or capacity) instructed solicitors to make an urgent non-molestation application in the Horsham Family Court against the Respondent. That was dismissed. (emphasis in original)
As Cotter J somewhat tartly noted:
75. This comment again illuminates the Respondent’s attitude to capacity and meshes with the earlier comments about Mr Major “messing about” with capacity. As I have already set out at any given stage a person either has capacity or they do not. It is a matter for the court to assess. Once that assessment is made it remains valid until varied or set aside. It is also not surprising that the person who lacks capacity may take an unmeritorious or unwise decision. That is the very reason why they need a litigation friend.
Ultimately, and – perhaps rather surprisingly given the outstanding appeal against the decision not to remove Ms Cowell as litigation friend[2] – the the claim proceeded to trial, at which point Ms Cowell did not have an advocate, although Counsel previously acting directly for her pro bono made an application to adjourn the trial). Mr Major did not give evidence, and HHJ Raeside KC gave judgment in favour of Ms Kirishani. Defending the appeal against the order declining to remove Ms Cowell, Counsel for Ms Kirishani sought to
84. […] pray in aid a number of matters that happened at the trial in relation to the merits of the decision taken by His Honour Judge Luba QC and of the action as a whole.
85. In my view there needs to be a very significant degree of caution exercised before embarking upon consideration of whether any such subsequent matters can impact upon the issue which is considered within this judgment i.e. whether the Judge erred in law at an earlier hearing.
86. Mr Major did not give evidence, lost and was subject to an order for indemnity costs (of itself a concerning matter). In my judgment the court should be very slow to enter into evaluation of the performance of a litigation friend in such circumstances. In a witness statement of 14thDecember 2022 Ms Cowell referred to her impaired ability to assimilate the content of the bundle, that she missed significant discrepancies in the evidence and was too anxious to focus properly.
87. As for the merits of the action it is not as simple as considering the judgment on the issues in evidence before the court at the trial. Consideration would have to be given to what arguments could/should have been run but were not (including as to how the court should approach Mr Major), what evidence could/should have been called(and what offers could/should have been made). It is also important to recognise that the litigation remains live and issues of privilege and conflict of interest arise.
88. As a result I have not considered what happened at the trial in any detail.
In determining the central question, namely whether HHJ Luba KC erred in not discharging Ms Cowell, Cotter J set out at paragraphs 101-110 a helpful overview of the framework governing litigation friends in civil proceedings, noting that:
110 […] the duties of a litigation friend can be onerous. Also a Defendant’s litigation friend does not have an immunity against a personal costs order. This of relevance if a litigation friend is required to act against their wishes a fortiori when the person doubts their ability to conduct the litigation competently.
Turning then to the question of discharge of a litigation friend and, again, setting out a review of the framework, Cotter J made clear that he agreed with the conclusion of Foskett J in Bradbury v Paterson [2014] EWHC 3992 that:
115. […] that there is no necessity that a substitute litigation friend be identified before an order can be made under CPR 21.7. As for the observation that a litigation friend who is being required to act on an unwilling basis will have an interest adverse to the protected party (because his/her primary interest will be in bringing the litigation, and with it their unwanted involvement, to an end as speedily as possible, regardless of whether this is in the interests of the protected party), this has very considerable, if not overwhelming force where the litigation friend is not a lawyer, and so has no professional obligations to the protected party or the Court. As I have set out the litigation friend is charged with the conduct of the litigation, aspects of which are particularly demanding for a litigant in person (and if not progressed competently the litigation friend is potentially exposed to a personal costs order) and a litigation friend for a defendant is not entitled to expenses (contrary to Mr Karia’s submissions).
Cotter J then set out how this framework applied (or should have applied) to the position before HHJ Luba KC:
129. The starting point when considering whether the appointment of a litigation friend (legally qualified or not) should be terminated is whether the conditions in CPR 21.4 (3) continue to be satisfied and whether the litigation friend continues to consent to act. These are not merely factors which may be taken into account in the balance with no more weight than any other considerations. The Court should guard against any weakening of these mandatory requirements which may deprive a protected party of what the rules deem as necessary protection. If the conditions are no longer satisfied, or the Litigation Friend no longer consents to act it, it will require exceptional circumstances for the appointment to continue. Here there was no finding that the application, made by a litigation friend who was acting as a litigant in person, was anything other than bona fides. She no longer consented to act and doubted her ability “to comply with my duties to act in the Defendant’s best interests and have concerns about my ability to make effective decisions on behalf of the Defendant.” Having raised no issue with Ms Cowell about her mental health and its impacts the Judge should have considered whether there were any exceptional circumstances which could mean that it was proper to order her to remain in the role. In the absence of such circumstances the application should have succeeded.
130. Although not expressly set out within CPR 21.4(3) consent is a fundamental requirement for a litigation friend’s appointment. It is very difficult to envisage circumstances where a person who makes an application to be appointed does not consent to the appointment at the time the application is made. The Court will ordinarily require consent to be specifically addressed through form N235 although this is no longer expressly required by a Practice Direction. It will only be in very rare circumstances that the Court will appoint a person without first considering this issue (or being able to arrive at a view that consent is likely as in Kumar v Hellard).
131. Consent is a requirement not just a matter of basic principles of justice and fairness but also for the reasons particularly emphasised in Bradbury. For the avoidance of doubt I agree with Foskett J’s statement in Bradbury that
‘I do not think that there is any warrant for the conclusion that the consent of any person to act as a litigation friend is irrevocable, certainly under the regime provided for by the CPR.’
132. Whilst the withdrawal of consent will not axiomatically lead to the termination of an appointment (as also noted in Bradbury), it must be a key factor both in its own right (because the court faces forcing someone to do something which they no longer wish to do) and also due to the risk that the presence of an unwilling, non-consenting litigation friend poses to the fairness of the proceedings and to the safeguarding of the protected party’s interests. I think it likely that these factors gave rise to Pepperall J’s “first blush” concern about the order in issue.
133. Mr Karia’s submission that consent is “not a true factor” for a litigation friend is misconceived. The argument “at a slightly lower level” that the requirement of consent exists only at the time of appointment is also wrong. The need for consent continues throughout the appointment. As was pointed out in Bradburyin the absence of consent a conflict of interest arises.
134. In the present case the withdrawal of consent was understandable and justifiable and His Honour Judge Luba KC raised no issue with Ms Cowell’s evidence as to the onset of her mental health issues and the likely impact of continuing her role as a litigation friend. It appears that the Judge quite properly ignored the comments about her “claiming” to suffer anxiety and to her “changing whims”. These comments should not have been made.
135. Mr Burkett’s unnecessarily aggressive conduct of the litigation unsurprisingly, and considerably, heightened Ms Cowell’s anxiety and this was not her fault.
136. Given that Ms Cowell no longer consented and doubted her ability to comply with her duties it required exceptional circumstances to justify forcing her to continue. However the application had additional merit given the consequential risk to Ms Cowell’s health of making her continue, the lack of continuous legal representation, the complexity of the matter (the trial bundle being around 2500 pages with Mr Major’s lack of capacity likely to impact on the extent of the defence evidence), and the need to consider settlement/conduct generally.
137. The loss of a trial date alone cannot ordinarily outweigh the fact that there is no longer consent or that the requirements for appointment as a litigation friend are no longer met. The reason for this is obvious. The trial may well not be a fair one if the protected party has his/her interests in the hands of a person who cannot competently and/or and fairly conduct the proceedings and/or no longer wishes to do so ( in which case a conflict of interest arises as the litigation friend’s interest lies in the speedy conclusion of proceedings). There is also the risk of consequential litigation brought on behalf of the protected party in respect of any perceived failings of the Litigation friend to act with appropriate care.
Taking all of these matters together, Cotter J fully recognised:
138. […] that this decision was an exercise of discretion. However it is a well established principle that an appellate court can, and should, interfere with that exercise if it has gone seriously wrong. In my Judgment the Judge failed to properly direct himself as to the correct approach to the issue before him and fell into serious error. As a result the decision was plainly wrong and/or outwith the discretion allowed by the CPR upon an application by a litigation friend to be discharged.
139. The circumstances of Ms Cowell plainly and overwhelmingly were such that they should have led to her being discharged. She no longer consented to act and there was a real risk (due to her significant mental health difficulties and related personal situation) of her not being capable of performing her duties properly and/or of her having an interest adverse to that of Mr Major in that she would want the litigation to be over and could not face interaction with Mr Burkett (including with regard to settlement).
140. Whilst a discretion exists on an application to terminate it is trammelled. As I have set out once the conditions in CPR 21.4 and/or consent are no longer present it would take exceptional circumstances for a decision to continue the appointment to be justified. As Foskett J observed in Bradbury the Court has
‘little room to manoeuvre when presented with such an application’
141. In the present case the loss of a trial date (which had only be obtained as a result of Ms Cowell agreeing to act) and the fact that no substitute had been identified could not constitute sufficiently exceptional circumstances to displace the usual result of a lack of consent and/or inability to satisfy the conditions at CPR 21.4(3).
142. Ground one is successful, the decision was wrong and the order that Ms Cowell continue as litigation friend should not have been made.
Cotter J dealt more briefly with grounds two and three. In respect of the second, he agreed that HHJ Luba KC fell into error by taking into account and attaching weight to his view that there was “relatively little left to do before the trial” given that “all that remains to be done for trial in the instant case is agreement of the bundle and attendance at the trial, and suitable instruction of an advocate for Mr Major.” Cotter J considered that HHJ Luba KC had been encouraged into this error by the Respondent’s submissions:
144. […] As Ms Cowell correctly stated she had “to make decisions about his trial”, in respect of which she did “not feel confident to do that at all.”
145. The conduct of litigation is an onerous responsibility and cannot be sensibly divided into set procedural steps without consideration of the ancillary duties such as the continuing need to review prospects of success, evidential issues and to also to consider settlement. Here Ms Cowell was faced with the difficulty of Mr Major lacking capacity yet being the sole potential witness of fact in his own defence.
146. Care is also necessary when equating assistance from a pro-bono advocate at hearings with a solicitor having conduct of the action. The Judge’s finding was only that it was likely that there would be “assistance” specifically at trial. He failed to properly take into account the conduct required of Ms Cowell involved far more than simply preparing for the trial date. In particular the Judge overlooked that Ms Cowell should be considering settlement. Had he addressed his mind to it he would have had to recognise Ms Cowell’s understandable reluctance to engage with Mr Burkett given her health could impair that process.
Ground three – which also succeeded for essentially the reasons identified in relation to ground two – was that HHJ Luba KC wrongly applied, in effect, a pre-requisite that a substitute litigation friend be appointed. As it was not necessary to do so, Cotter J declined to address ground four, namely that “[the] Judge was wrong in law in that ordering Ms Cowell to continue as a litigation friend meant that he was ordering forced labour in breach of Article 4 of the European Convention on Human Rights.” He did note, however, that “[i]t is a not a straightforward issue and has some substance. Conduct of litigation can be very onerous, time consuming and a litigation friend acting for a defendant is not entitled to expenses” (paragraph 150).
Cotter J, finally, identified that it would be of assistance if the Civil Procedure Rules Committee to consider clarification of the issue of consent in respect of an application under CPR21.6 given that the Practice Direction accompanying Part 21 is no longer in force (and there may be doubt as to the Court’s ability to require form N235 be signed).
Comment
The summary set out above is lengthy, but this is both because the nuances of the saga are, themselves, important, and because of the careful and detailed way in which Cotter J analysed the law, the obligations upon litigation friends, and the obligations upon the court when a litigation friend considers that they can no longer continue, all of which are observations of wider application to just the case before him.
Perhaps the only surprising thing about his conclusions as to the application of the provisions of the CPR was his view that an appointment could be required to continue in exceptional circumstances. Unless, by “exceptional circumstances,” Cotter J had in mind a situation where there was proper reason to consider that the litigation friend was in effect making up excuses to stop acting (which might have been what he was contemplating), I would suggest that, if a litigation friend stops consenting, then that has to be end of the matter, no matter the difficulties to which this puts the other party / parties and the court. This is so even if the litigation friend is the Official Solicitor, as the decision in Bradbury v Paterson[3] makes clear – and even though the Official Solicitor is described as the litigation friend of last resort, a description which Bradbury v Paterson makes clear has to be taken with a distinct pinch of (funding) salt,[4]
[1] In passing, it is striking – and at one level troubling – how much detail is set out in the judgment relating to those issues, their consequence, and their management. Although perhaps necessary for determination of the application, one might query whether – given that Mr Major did not bring the proceedings, and lacked capacity to conduct them – consideration might not have been given to anonymising him in the same way as would have been done had the case been proceeding before the Court of Protection.
[2] The reason appears to have been administrative complexities, including the lack of any transcript or even note of the judgment of HHJ Luba KC.
[3] Full disclosure, in which I acted, along with Fenella Morris, then QC, for the Official Solicitor.
[4] Note, I am not criticising the Official Solicitor or her office here, but rather a system which asserts that there is a litigation friend of last resort, who would have been able to pick up the pieces in a case such as Mr Major’s, but which does not in fact provide sufficient funding to enable this to happen.
