See also Practice Direction
21
Part
21
CHILDREN AND
PROTECTED PARTIES
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Scope of this Part
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21.1 |
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| | (1)
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This Part –
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contains special provisions
which apply in proceedings involving children and protected
parties;
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sets out how a person becomes a
litigation friend; and
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does not apply to proceedings
under Part 75 where one of the parties to the proceedings is a
child.
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| | (2)
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In this Part
–
‘the 2005 Act’ means the Mental Capacity Act
2005;
‘child’ means a person under
18;
‘lacks capacity’ means lacks capacity within the
meaning of the 2005 Act;
‘protected party’ means a
party, or an intended party, who lacks capacity to conduct the
proceedings;
‘protected beneficiary’ means a protected
party who lacks capacity to manage and control any money recovered by him or on
his behalf or for his benefit in the proceedings.
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(Rules
6.13 and 6.25 contain provisions
about the service of documents on children and protected
parties.)
(Rule 48.5 deals
with costs where money is payable by or to a child or protected
party.)
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| This Rule is referred to in: Part 02 (2.3), (2.3), Part 06 (6.13), Part 48 (48.5), Part 75 (75.1), PDP 07e (4), PDP 08 (3.1), PDP 12 (5.2), PDP 25b (1.2), PDP 26b (2), PDP 40 (8), PDP 52 (13.4), Bailey v Warren [119], Folks v Faizey [10], [10]. |
In Rule 21.1(2)(b), 'his
own affairs' replaced by 'his property and affairs' w/e from 1 April 2004,
Text substituted in the first parenthesis below Rule 21.1(2) w/e from 1 October 2008. |
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Requirement for a litigation friend in proceedings by
or against children and protected parties
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21.2 |
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A protected party must have a
litigation friend to conduct proceedings on his behalf.
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A child must have a litigation friend
to conduct proceedings on his behalf unless the court makes an order under
paragraph (3).
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The court may make an order
permitting a child to conduct proceedings without a litigation
friend.
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An application for an order under
paragraph (3) –
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may be made by the
child;
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if the child already has a
litigation friend, must be made on notice to the litigation friend;
and
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if the child has no litigation
friend, may be made without notice.
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Where –
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the court has made an order
under paragraph (3); and
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it subsequently appears to the
court that it is desirable for a litigation friend to conduct the proceedings
on behalf of the child,
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the court may appoint a person to be the
child's litigation friend.
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Stage of proceedings at which a litigation friend
becomes necessary
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21.3 |
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This rule does not apply where the
court has made an order under rule 21.2(3).
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A person may not, without the
permission of the court –
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make an application against a
child or protected party before proceedings have started; or
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take any step in proceedings
except –
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| | (ii)
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applying for the
appointment of a litigation friend under rule 21.6,
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until the child or protected party has a
litigation friend.
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If during proceedings a party lacks
capacity to continue to conduct proceedings, no party may take any further step
in the proceedings without the permission of the court until the protected
party has a litigation friend.
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Any step taken before a child or
protected party has a litigation friend has no effect unless the court orders
otherwise.
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Who may be a litigation friend without a court
order
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21.4 |
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This rule does not apply if the court
has appointed a person to be a litigation friend.
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A deputy appointed by the Court of
Protection under the 2005 Act with power to conduct proceedings on the
protected party’s behalf is entitled to be the litigation friend of the
protected party in any proceedings to which his power extends.
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If nobody has been appointed by the
court or, in the case of a protected party, has been appointed as a deputy as
set out in paragraph (2), a person may act as a litigation friend if he
–
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can fairly and competently
conduct proceedings on behalf of the child or protected party;
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has no interest adverse to that
of the child or protected party; and
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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.
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How a person becomes a litigation friend without a
court order
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21.5 |
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If the court has not appointed a
litigation friend, a person who wishes to act as a litigation friend must
follow the procedure set out in this rule.
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A deputy appointed by the Court of
Protection under the 2005 Act with power to conduct proceedings on the
protected party’s behalf must file an official
copy(GL) of the order of the Court of Protection which
confers his power to act either –
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where the deputy is to act as a
litigation friend for a claimant, at the time the claim is made;
or
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where the deputy is to act as a
litigation friend for a defendant, at the time when he first takes a step in
the proceedings on behalf of the defendant.
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Any other person must file a
certificate of suitability stating that he satisfies the conditions specified
in rule 21.4(3) either –
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where the person is to act as a
litigation friend for a claimant, at the time when the claim is made;
or
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where the person is to act as a
litigation friend for a defendant, at the time when he first takes a step in
the proceedings on behalf of the defendant.
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The litigation friend must
–
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serve the certificate of
suitability on every person on whom, in accordance with rule 6.13 (service on a
parent, guardian etc.), the claim form should be served; and
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(Rules
6.17 and 6.29 set
out the details to be contained in a certificate of
service.)
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Text inserted in Rule 21.5(4)(a) w/e from 1 October 2008,
Text substituted in Rule 21.5(4)(b) w/e from 1 October 2008,
Text substituted in parenthesis below Rule 21.5(4)(b) w/e from 1 October 2008. |
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How a person becomes a litigation friend by court
order
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21.6 |
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The court may make an order
appointing a litigation friend.
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An application for an order
appointing a litigation friend may be made by –
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a person who wishes to be the
litigation friend; or
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Where –
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a person makes a claim against
a child or protected party;
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the child or protected party
has no litigation friend;
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the court has not made an order
under rule 21.2(3) (order that a child can conduct proceedings without a
litigation friend); and
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either –
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someone who is not
entitled to be a litigation friend files a defence; or
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the claimant wishes to
take some step in the proceedings,
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the claimant must apply to the court for
an order appointing a litigation friend for the child or protected
party.
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An application for an order
appointing a litigation friend must be supported by evidence.
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The court may not appoint a
litigation friend under this rule unless it is satisfied that the person to be
appointed satisfies the conditions in rule 21.4(3).
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Court’s power to change a litigation friend and to
prevent person acting as a litigation friend
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21.7 |
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The court may –
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direct that a person may not
act as a litigation friend;
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terminate a litigation friend's
appointment; or
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appoint a new litigation friend
in substitution for an existing one.
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An application for an order under
paragraph (1) must be supported by evidence.
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The court may not appoint a
litigation friend under this rule unless it is satisfied that the person to be
appointed satisfies the conditions in rule 21.4(3).
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Appointment of a litigation friend by court order
– supplementary
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21.8 |
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An application for an order under
rule 21.6 or 21.7 must be served on every person on whom, in accordance with
rule 6.13 (service on parent, guardian etc.), the claim form must be
served.
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Where an application for an order
under rule 21.6 is in respect of a protected party, the application must also
be served on the protected party unless the court orders
otherwise.
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An application for an order under
rule 21.7 must also be served on –
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the person who is the
litigation friend, or who is purporting to act as the litigation friend, when
the application is made; and
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the person who it is proposed
should be the litigation friend, if he is not the applicant.
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On an application for an order under
rule 21.6 or 21.7, the court may appoint the person proposed or any other
person who satisfies the conditions specified in rule 21.4(3).
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| Text substituted in Rule 21.8(1) w/e from 1 October 2008. |
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Procedure where appointment of a litigation friend
ceases
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21.9 |
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When a child who is not a protected
party reaches the age of 18, the litigation friend’s appointment
ceases.
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Where a protected party regains or
acquires capacity to conduct the proceedings, the litigation friend’s
appointment continues until it is ended by court order.
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An application for an order under
paragraph (2) may be made by –
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the former protected
party;
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the litigation friend;
or
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The child or protected party in
respect of whom the appointment to act has ceased must serve notice on the
other parties –
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stating that the appointment of
his litigation friend to act has ceased;
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giving his address for service;
and
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stating whether or not he
intends to carry on the proceedings.
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If the child or protected party does
not serve the notice required by paragraph (4) within 28 days after the day on
which the appointment of the litigation friend ceases the court may, on
application, strike out(GL) any claim brought by or defence raised by the child
or protected party.
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The liability of a litigation friend
for costs continues until –
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the person in respect of whom
his appointment to act has ceased serves the notice referred to in paragraph
(4); or
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the litigation friend serves
notice on the parties that his appointment to act has ceased.
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Compromise etc. by or on behalf of a child or protected
party
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21.10 |
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Where a claim is made –
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by or on behalf of a child or
protected party; or
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against a child or protected
party,
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no settlement, compromise or payment
(including any voluntary interim payment) and no acceptance of money paid into
court shall be valid, so far as it relates to the claim by, on behalf of or
against the child or protected party, without the approval of the
court.
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Where –
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before proceedings in which a
claim is made by or on behalf of, or against, a child or protected party
(whether alone or with any other person) are begun, an agreement is reached for
the settlement of the claim; and
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the sole purpose of proceedings
is to obtain the approval of the court to a settlement or compromise of the
claim,
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the claim must –
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be made using the
procedure set out in Part 8 (alternative procedure for claims);
and
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include a request to the
court for approval of the settlement or compromise.
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In proceedings to which Section II of
Part 45 applies, the court will not make an order for detailed assessment of
the costs payable to the child or protected party but will assess the costs in
the manner set out in that Section.
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(Rule 48.5 contains
provisions about costs where money is payable to a child or protected
party.)
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| This Rule is referred to in: Part 14 (14.1), Part 36 (36.9), Part 45 (45.7), Part 46 (46.1), PDP 04 (3.2), (3.2), PDP 21 (7.3), QB Guide - Chapter 5 (5.3), QB Guide - Chapter 6 (6.8), Bailey v Warren [109], [139], [163], [168], Drinkall v Whitwood [13], Folks v Faizey [6]. |
Paragraph (3) added to Rule 21.10
w/e from 1 April 2005,
Paragraph (3) added to Rule 21.10
w/e from 1 April 2005. |
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Control of money recovered by or on behalf of a child
or protected party
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21.11 |
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Where in any proceedings
–
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money is recovered by or on
behalf of or for the benefit of a child or protected party; or
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money paid into court is
accepted by or on behalf of a child or protected party,
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the money will be dealt with in accordance
with directions given by the court under this rule and not
otherwise.
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Directions given under this rule may
provide that the money shall be wholly or partly paid into court and invested
or otherwise dealt with.
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Where money is recovered by or on
behalf of a protected party or money paid into court is accepted by or on
behalf of a protected party, before giving directions in accordance with this
rule, the court will first consider whether the protected party is a protected
beneficiary.
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Expenses incurred by a litigation
friend
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21.12 |
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In proceedings to which rule 21.11 applies, a litigation friend who incurs expenses on behalf of a child or
protected party in any proceedings is entitled on application to recover the
amount paid or payable out of any money recovered or paid into court to the
extent that it –
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has been reasonably incurred;
and
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is reasonable in
amount.
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| | (2)
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Expenses may include all or part of
–
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interest on a loan taken out to
pay an insurance premium or other recoverable disbursement.
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| | (3)
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No application may be made under the
rule for expenses that –
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are of a type that may be
recoverable on an assessment of costs payable by or out of money belonging to a
child or protected party; but
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are disallowed in whole or in
part on such an assessment.
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(Expenses which
are also ‘costs’ as defined in rule 43.2(1)(a) are dealt with under
rule 48.5(2).)
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In deciding whether the expenses were
reasonably incurred and reasonable in amount, the court will have regard to all
the circumstances of the case including the factors set out in rule
44.5(3).
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When the court is considering the
factors to be taken into account in assessing the reasonableness of the
expenses, it will have regard to the facts and circumstances as they reasonably
appeared to the litigation friend or to the child’s or protected
party’s legal representative when the expense was incurred.
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Where the claim is settled or
compromised, or judgment is given, on terms that an amount not exceeding
£5,000 is paid to the child or protected party, the total amount the
litigation friend may recover under paragraph (1) must not exceed 25% of the
sum so agreed or awarded, unless the court directs otherwise. Such total amount
must not exceed 50% of the sum so agreed or awarded.
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Appointment of a guardian of a child’s
estate
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21.13 |
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The court may appoint the Official
Solicitor to be a guardian of a child’s estate where –
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money is paid into court on
behalf of the child in accordance with directions given under rule 21.11 (control of money received by a child or protected party);
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| | (b)
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the Criminal Injuries
Compensation Authority notifies the court that it has made or intends to make
an award to the child;
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| | (c)
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a court or tribunal outside
England and Wales notifies the court that it has ordered or intends to order
that money be paid to the child;
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| | (d)
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the child is absolutely
entitled to the proceeds of a pension fund; or
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| | (e)
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in any other case, such an
appointment seems desirable to the court.
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| | (2)
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The court may not appoint the
Official Solicitor under this rule unless –
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the persons with parental
responsibility (within the meaning of section 3 of the Children Act
19891) agree; or
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| | (b)
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the court considers that their
agreement can be dispensed with.
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| | (3)
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The Official Solicitor’s
appointment may continue only until the child reaches 18.
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