Medical Negligence Claims: What is a Litigation Friend?
A “litigation friend” is the legal term for someone who assists another person in bringing a claim.
A litigation friend is necessary where the Claimant in a legal case, such as a medical negligence compensation claim, is a child under the age of 18. A child is not able to give formal instructions or take legal decisions relating to a claim until they turn 18.
A litigation friend is also necessary where the Claimant is incapable of managing his or her own affairs. Most commonly, this will be because he/she does not have the capacity to make decisions due to an injury or mental illness which can of course sometimes be caused by medical negligence. In those circumstances, the Claimant is also known as a “Protected Party”.
What is the role of a Litigation Friend?
A litigation friend assists the Claimant by dealing with the legal case. If a person is appointed as a litigation friend, their name will appear on the Court papers and they will need to sign any Court documents on the Claimant’s behalf. On a practical level, your medical negligence lawyers obtain instructions from the litigation friend when decisions need to be made (although they will always provide advice about the decisions to be made and the options). The litigation friend will attend meetings on behalf of the Claimant and may have to take decisions on the Claimant’s behalf about a whole range of issues connected with the claim, including the level of compensation they are willing to settle for.
A litigation friend must always act in the best interests of the Claimant at all times. He/she must not make decisions in their own interests, but must consider what is best for the Claimant when giving instructions to us.
Who can be a Litigation Friend?
A litigation friend must be someone who can act fairly and competently on behalf of the child or Protected Party.
In the majority of medical negligence claims involving Claimants under the age of 18, the litigation friend will be one of the child’s parents. For Protected Parties, the litigation friend might be a parent, sibling, husband/wife, child or close friend. In some cases, it may be more appropriate to appoint a guardian, social worker or professional carer to act.
If there is no one suitable and/or willing to act on behalf of the Claimant, the Court may appoint the Official Solicitor to act on behalf of the Claimant instead. The Official Solicitor is a special branch of the Court set up for that purpose.
How can I become a Litigation Friend?
If you are able to act as the litigation friend, you will need to sign a “Certificate of Suitability” before you become involved in Court proceedings. Your medical negligence solicitors will provide you with a copy of this and file it at Court on your behalf.
How am I released from this role?
If you represent a child, your appointment as litigation friend will automatically come to an end as soon as they reach the age of 18 or at the end of the clinical negligence claim if sooner.
If you represent a Protected Party, your appointment will continue until the end of the medical negligence claim or if the Claimant regains mental capacity. This may occur where a Claimant recovers sufficiently from their injuries to be able to manage their legal and financial affairs once again.
You may also voluntarily step down if you no longer wish to act.
How does it affect the medical negligence claim?
In general, the medical negligence claim will proceed in the same way as it would if the Claimant was able to bring proceedings in his/her own right. One difference is that, where a Claimant requires a Litigation Friend, any settlement agreed on behalf of the Claimant must be approved by the Court. This provides a measure of extra protection to the Claimant.
Coodes has also launched a dedicated knowledge bank of information for victims of medical negligence claims and their families including how to find out more about contacting a lawyer, seeking justice and claiming compensation. Click here for more information.
Our team of experienced medical negligence solicitors is based in Cornwall and Devon but cover the whole of England and Wales and visit clients wherever they live.
Whatever the circumstances, we are here to help. For more information, contact Rachel Pearce and the Coodes Solicitors clinical negligence team: firstname.lastname@example.org or 01326 318900.