Case note on LZL v HYC

Facts

1. The claimant and first defendant are partners. Together, they have five children between the ages of six and 23.
2. The claimant was a passenger whilst being driven by the first defendant. The first defendant crashed the car.
3. The claimant suffered a traumatic brain injury.
4. The claimant filed a claim against the first defendant on 25 October 2023.
5. The claimant lacks capacity to conduct proceedings. The claimant’s litigation friend is the first defendant’s mother, HXS. The claimant has lived with HXS since she was 14 years old. HXS has acted as the litigation friend since 3 September 2023.
6. On 6 June 2023, the second defendant, an insurer, made a voluntary interim payment of £100,000 to the claimant.
7. On 20 December 2023, HHJ Siddique approved the interim payment in order that the payment may be used for rehabilitation or injury related purposes. He further ordered that the claimant apply to the Court for the appointment of a Professional Deputy by 12 January 2024.
8. At the date of the hearing, on 11 March 2024, an application had still not been made. HXS failed to provide the relevant documents to the claimant’s solicitors to enable an application to be made. HXS did, however, bring the required documentation to the hearing.
9. Because a deputy had not been appointed, the claimant had been unable to utilise the interim payment to acquire a suitable property to live in.
10. The claimant was opposed to the making of an application of a deputy because she was distrustful of those outside the family.

Issue

11. Whether the Court should appoint an alternative litigation friend. Absent suitable alternatives, the only appropriate candidate was the Official Solicitor.

Law

12. Farbey J considered the legal framework.
13. CPR 21.2(1) stipulates that a litigation friend may act as litigation friend if they can fairly and competently conduct proceedings on behalf of the protected party and have no interest adverse to that of the protected party.
14. The White Book commentary indicates at 21.4.1, that a (prospective) litigation friend having an interest in the litigation is not fatal to their acting as such so long as their interest is not adverse to the interests of the protected party.
15. CPR 21.7 stipulates that the court may terminate and appoint litigation friends.

Decision

16. Farbey J considered that the following factors weighed in favour of appointing an alternative litigation friend to HXS:
    • HXS lacked insight into the need for a professional deputy; and
    • HHJ Siddique’s order had been breached in part because HXS failed to supply relevant This suggests HXS may not be able to competently conduct the litigation.

17. Farbey J considered that the following factors weighed in favour of permitting HXS to remain litigation friend:
    • HXS had now supplied the relevant documentation so that the claimant’s solicitors could apply for the appointment of a professional deputy;
    • There was no evidence HXS could not safeguard the claimant’s interests despite being the defendant’s mother;
    • HXS would likely be better able to facilitate the claimant’s engagement with the litigation process than an Official Solicitor.

18. On balance, Farbey J concluded that HXS should be given one final chance to remain litigation friend. If an application for a professional deputy was not made within 14 days (or some other reasonable period as agreed by counsel), then the Official Solicitor was to replace HXS as the litigation friend.

Comment

19. For those considering whether a given individual would make for a suitable litigation friend, the analysis should focus on the specific circumstances of the case and not merely the existence of a connection between litigation friend and defendant. Here, even in the face of the ongoing breach of a Court Order, Farbey J took a pragmatic approach and allowed for the litigation friend to continue to act.