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Litigation Friend appointments and costs

The High Court has ordered that a Defendant is not liable for costs incurred arising from a dispute over who the Litigation Friend should be. Sean Linley reports.

In HR v Aneurin Bevan University Local Health Board [2021] EWHC 2195 (Admin), Mrs Justice Foster stated that: "it is clear that the actions of the Defendant had nothing whatever to do with the family’s refusal to accept the replacement of the Litigation Friend by the Official Solicitor, and that the Defendant had no part in the inter-family dispute that produced the uncle’s application." 

In HR, a dispute arose over who should assume the role as the Litigation Friend. Two applications were brought, first an application by the Claimant's solicitor's for the Official Solicitor to be appointed (in place of the Claimant's ex-wife) and a cross-application by the Claimant's uncle who asked to be appointed LF instead of the Official Solicitor. The Judge accepted the appointment of the Official Solicitor and rejected the Uncle's application.  

Upon settlement of the substantive litigation, the Claimant sought to include an clause in the final order for costs that it would: 

"... include the Claimant's cost of and occasioned by the withdrawal of [RA] as Litigation Friend and the appointment of the Official Solicitor to act as Litigation Friend." 

The Defendant was not involved in the application and argued that whilst it accepted the basic costs associated with making an application under CPR r21.7, the costs of the contested application (which included two hearings to determine it) should not be paid by them. It was the Defendant's case that if the application to appoint the Official Solicitor had been unchallenged then it would have been straightforward.  

The Claimant argued that the case was complex and exceptional and that costs should be ordered. Mrs Justice Foster noted that: 

"The Claimant puts its detailed case in terms that the court should make an Order that the Defendant health board pay the costs because he seeks only an Order that those costs be assessed and, as such, the Claimant will recover only a reasonable and proportionate sum in any event. That submission, however, does not deal with the point of principle as to whether it is right for there to be an Order against the Defendant. That question is not necessarily the same as asking whether the Claimant himself ought to have to bear the cost although that might be the result if an Order against the Defendant is not made." 

The Court held that "as a matter of the exercise of my discretion under section 51 of the Senior Courts Act 1981, costs beyond the basic costs of making the application to substitute the Official Solicitor on paper are not recoverable against the health board." 

It further concluded that: "the involvement of the family here, contrary to the advice of the Claimant’s advisors, whilst understandable, did not in my judgement represent a reasonable approach. Whilst the Claimant’s representatives were clear as to the best outcome for the Claimant, and opposed the family member’s application, in all the circumstances of this case the family member took the risk of an adverse outcome and cannot lay the costs consequently at the Defendant’s door.

"It is clear that the actions of the Defendant had nothing whatever to do with the family’s refusal to accept the replacement of the Litigation Friend by the Official Solicitor, and that the Defendant had no part in the inter-family dispute that produced the uncle’s application. Importantly, it is clear from the history that the Claimant’s legal advisers did not believe it to be in the Claimant’s best interest to replace the Claimant’s ex-wife with another family member: such background history as HHJ Harrison relates makes plain why that may be so. This ought therefore to have been a simple application to replace a Litigation Friend with the Official Solicitor without a contested hearing – or hearings. It may be that the Claimant could have recovered costs against the failed applicant uncle – indeed it is trite that the usual rule is that the unsuccessful party pays the costs involved. Whatever the position as between the uncle and the Claimant, and in any event, it is not appropriate for the Claimant to recover the costs of the uncle’s unsuccessful application against the health board.

"Put another way, in light of the overriding objective to do justice, it is in my judgement not just to fix the Defendant health board with the costs incurred by the Claimant in what was, in truth, an inter-family dispute in which they played no part and which the Claimant’s legal representatives acting in his best interests were dragged." 

Accordingly the Court ordered that the Defendant was not required to pay the costs of the two contested hearings. In this case the opportunity to potentially recover the costs has been lost, though the Court did recognise that it was possible that such costs could have potentially sought from the Claimant's Uncle, though, whether that was practically possible given the complex family dynamic is far from certain.  

None-the-less, this is a warning to litigators and lay-client's that costs consequences can extend beyond the litigation itself whether by virtue of recovery from another individual or no recovery at all. It is also a reminder of the wide-discretion and power that the Court has when making awards of costs.  

Sean Linley is a costs draftsman at Carter Burnett.

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