What is a litigation friend in a clinical negligence claim?

It could be that the claim is for a child, or someone who does not have the mental capacity to conduct the case themselves, for example the individual may have suffered a serious brain injury, have learning disabilities or other disability which means their ability to give instructions is impaired. In some instances, it may become apparent during the course of the claim that a litigation friend is needed, for example if an individual’s health deteriorates.

When is a litigation friend needed?

A litigation friend is usually needed where the claimant cannot run the claim independently. This includes:

• a child under the age of 18
• an adult who lacks mental capacity to make decisions about the claim (i.e. they lack “litigation capacity”)

An individual is deemed to lack litigation capacity if they cannot understand, retain, or weigh up information to make a decision in their case due to an impairment or disturbance in the mind or brain, which could be due to brain injury, progressive neurological conditions or mental health illnesses.

Court proceedings cannot be progressed without a litigation friend once a lack of capacity is established.

In legal proceedings, an adult who lacks capacity is often referred to as a protected party. The litigation friend acts for the protected party or child during the claim, but they do not become the injured person’s lawyer.

Who can act as a litigation friend?

A litigation friend is often someone who knows the claimant well and can act in their best interests. This may be a parent, guardian, spouse, partner, family member, close friend, or in cases where there isn’t a suitable option, another professional may act as a litigation friend.

The court must be satisfied that the person is suitable. A litigation friend should be able to conduct the case fairly and competently, have no conflict of interest with the claimant, and be willing to take on the responsibilities of the role.

What does a litigation friend do?

The litigation friend’s main role is to direct the claim in the claimant’s best interests. In practice, this usually means:

• giving instructions to the solicitor on the claimant’s behalf
• making decisions about the progress of the claim
• considering legal and medical advice
• helping to gather evidence about what happened and how the injury has affected the claimant
• keeping the claimant informed as far as possible
• taking the claimant’s wishes and feelings into account where they can be understood
• making decisions about settlement offers

The litigation friend should not simply make the decision they personally prefer. They must focus on what is in the claimant’s best interests, based on the evidence and legal advice available.

Why are litigation friends common in clinical negligence claims?

Clinical negligence claims can be complex and can span many years. They have multiple stages including medical evidence, assessing long term care needs, loss of earnings and future requirements.

A litigation friend helps ensure that the claimant’s case is properly investigated and that important decisions are made with the claimant’s welfare at the centre of the process.

Does the court approve settlements?

Yes. Where a clinical negligence claim is brought for a child or protected party, any settlement needs court approval. This is an important safeguard. The court will consider whether the proposed settlement is fair and reasonable before it becomes binding.

If compensation is approved, the court may also decide how the money should be held or managed. For children, funds are commonly protected until they reach adulthood. For adults who lack capacity, arrangements may involve the Court of Protection, a deputy, or another suitable structure depending on the circumstances.

Can a litigation friend be responsible for costs?

A litigation friend may be required to pay costs ordered by the court, although in many clinical negligence claims the solicitor will explain funding options, insurance, and the practical risks before the claim proceeds. Anyone considering acting as a litigation friend should ask for clear advice about costs at the start. That said, provided the litigation friend follows the advice provided by the claimant’s solicitor, they will be protected from any adverse costs consequence.

When does the role end?

The role usually ends when the claim concludes. It may also end if a child turns 18 and can conduct the claim themselves, if an adult regains capacity, or if the court appoints someone else. In some cases, a litigation friend may remain involved after settlement if they are needed as a contact for funds held on behalf of a child or protected party.

Key points to remember

• A litigation friend acts for a child or adult who cannot manage a legal claim themselves.
• Their decisions must be made in the claimant’s best interests.
• They work with the solicitor, give instructions, and help progress the claim.
• They must be suitable, independent, and free from conflicts of interest.
• Settlements for children and protected parties usually need court approval.

How Blackwater Law can help

If you are thinking about bringing a clinical negligence claim for a child or someone who lacks capacity, it is important to get specialist advice. A solicitor can explain whether a litigation friend is needed, what the role involves, and how the claim can be managed in the claimant’s best interests.