The applications comprised an application by the First Defendant (Gopichand Parmanand Hinduja) seeking derogations from the open justice principle and an application by the Claimant (Srichand Parmanand Hinduja) seeking to regularise the position with regard to the Claimant’s litigation friend, Vinoo Hinduja (“the Regularisation Application”).
This summary will only consider the second element, the appointment of a litigation friend, and in particular with regard to deputies.
The background to the Regularisation Application was that, through an oversight, the Claimant’s solicitors had failed to file a certificate of suitability from Vinoo Hinduja under CPR 21.5 when the claim was made. The certificate was subsequently filed and an application was made for an order under CPR 21.3(4) to give effect to all steps taken in the proceedings before the filing was made, and confirming that Vinoo Hinduja was appointed as SP’s litigation friend by filing the certificate. A further application dated 29 April sought in the alternative an order under CPR 3.10(b) remedying any error of procedure or alternatively for the appointment to be made by an order of the court under CPR 21.6. The Defendants objected on the basis that Vinoo Hinduja could only be appointed under CPR 21.6 and the court did not have the requisite evidence to confirm SP’s status as a protected party and Vinoo Hinduja did not meet the conditions in CPR 21.4(3)(a) or (b).
CPR 21 and the associated Practice Direction deal with children and protected parties. A protected party is a party, or an intended party, who “lacks capacity to conduct proceedings”. Capacity is determined using the test set out in the Mental Capacity Act 2005 (“MCA 2005”).
CPR 21.2(1) provides that a protected party must have a litigation friend to conduct proceedings on his behalf.
CPR 21.4 deals with who may be a litigation friend without a court order. CPR 21.4(3) provides that a person may act as a litigation friend if he:
“(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) has no interest adverse to that of the child or protected party; and
(c) where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party”.
Where no deputy has been appointed by the Court of Protection with authority to conduct proceedings, the procedure is governed by CPR 21.5(3) which provides that (where the protected person is the claimant) the person must file a certificate of suitability at the time the claim is made.
CPR 21.6 provides that the court may make an order appointing a litigation friend. An application may be made either by the person who wishes to be the litigation friend or by a party, and must be supported by evidence. The two preconditions to the exercise of the court’s power under CPR 21.6 are, first whether a party is a protected party and secondly, whether the requirements of CPR 21.4(3) (set out above) are met.
In relation to capacity, Mrs Justice Falk stated that there are two elements to section 2(1) MCA 2005, namely (a) an inability to make a decision in relation to the matter and (b) that the inability is the result of an impairment or disturbance of the kind described. Section 3 MCA 2005 provides that a person is unable to make a decision for himself if he unable to understand the information relevant to that decision, retain it, use it or weigh it as part of the process of making the decision, or communicate it. As set out in Masterman-Lister v Brutton  1 WLR 1511 (the leading case law on capacity to conduct litigation), “the key question is whether the party is capable of understanding, with the assistance of proper explanation from legal advisers and other experts as the case may require, the issues on which his consent or decision is likely to be necessary: does he have the “capacity to understand that which he needs to understand in order to pursue or defend a claim”?”.
Mrs Justice Falk determined “the sensible approach is for the court to exercise its power under CPR 21.6 if it is appropriate to do so. I think that is preferable to reaching a final view on whether CPR 3.10(b) can be used to remedy the procedural error under CPR 21.5”. Furthermore, “if [Mrs Justice Falk] decide[s] to exercise the court’s power under CPR 21.6 then [she has] no doubt that is also appropriate to make an order under CPR 21.3(4) to regularise the steps taken to date on SP’s behalf.
Mrs Justice Falk rejected David Rees’ suggestion that the evidence of (in)capacity must expressly address each of the tests in section 3 of the MCA 2005 and that SP’s Article 6 rights were engaged.
Paragraph 37: “There is no requirement in the rules to provide medical evidence of incapacity… The only reference to medical evidence is in paragraph 2.2 of PD21, 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 that purpose”.
Paragraph 41: “…in this case the certificate is 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”.
Paragraph 67: “I take into account that SP has 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, she has a duty to act in his best interests”.
Paragraph 75: “…impartiality is not required. The litigation friend must be able to act in the protected party’s best interest, and properly to weigh up relevant factors in making decisions on that party’s behalf. That does not mean that only an independent outsider with no personal interest in the outcome is qualified to act”.
As mentioned at the outset, this review focuses on the appointment of a litigation friend and the interaction with deputies.
For Court of Protection practitioners, there will be concern as to how capacity in this case was assessed and that no expert evidence to support the assessment of incapacity is required – stating “there can be no one who is in a better position to comment on whether her father has capacity to conduct the litigation” is concerning, especially the background to this particular matter and the potential conflict of interest in VH acting as litigation friend.
In an article by Alex Ruck Keene, Peter Bartlett and Neil Allen, the wider
issue of the role of a litigation friend is considered, particularly whether 1) a litigation friend is under a duty to act in MCA best interests (which is Mrs Justice Falk’s understanding of their role – see paragraphs 67 and 75 in particular) 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. The full note can be found at: https://academic.oup.com/medlaw/article/24/3/333/2733263?keytype=ref&ijkey=gsPTUKu0OSlcdfY.
Persons seeking to be appointed as litigation friend should usually seek authorisation of the Court of Protection to conduct proceedings for P and on P’s behalf. The key benefit of doing so is that that it offers protection for the litigation friend against costs orders and authorises P’s funds to be used to pay the costs of litigation. It is possible for retrospective authority to be obtained, although the Court of Protection may query why there is a delay in making the application. Senior Judge Hilder’s judgment in ACC & Ors  EWCOP 9 (27 February 2020) considers litigation on behalf of P in more detail.
(Author: Holly Chantler)