Appointment of new litigation friend

4 July, 2018

A ‘litigation friend’ is appointed to be a party to court proceedings when the person they are representing does not have the capacity to do so. The appointment of a litigation friend is rarely challenged, but has been done so in the recent case of Keays v Executors of the Late Parkinson [2018] EWHC 1006 (Ch) (8 May 2018).

The case of Flora Keays is well known: she is the severely handicapped child born from the affair the late politician Cecil Parkinson had with his former secretary Sarah Keays. Her father had provided for her during his lifetime, but these maintenance payments stopped two months after his death in 2016 and Flora was not a beneficiary of Cecil’s Will.

Sarah Keays issued a claim on Flora’s behalf as her litigation friend, under the Inheritance (Provision for Family and Dependants) Act 1975. However, the executors of Cecil’s estate sought to remove Sarah as the litigation friend as it was argued that she could not fairly and competently conduct proceedings on Flora’s behalf as she had an interest adverse to Flora’s, namely that she needed the maintenance payments to pay her mortgage.

There was a dispute over who should be appointed as Flora’s litigation friend. Sarah suggested three solicitors all with relevant expertise, but the executors objected to them all. The court considered whether the executors had shown grounds for removing Sarah as the litigation friend and found that, if Sarah could instruct a competent solicitor with relevant expertise, she would be able to fairly and competently conduct the proceedings. There was no evidence that she was not a suitable litigation friend within the meaning of CPR 21.4.

The master stated that, in his view, the court should be reluctant to impose a litigation friend on the parent or responsible person, and should only do so if there was no other viable candidate. The judge therefore made an order appointing Sarah’s preferred choice of solicitor as Flora’s litigation friend.

If you would like advice on appointing a litigation friend, or would like to make a claim against someone’s estate, please contact Phil Youdan on 01732 224 013 or philip.youdan@crippspg.co.uk.