Children and adults who lack capacity
Where any party to litigation in the Civil Courts is under a legal disability, i.e. is a child under 18 or a protected party (defined as a party who lacks capacity within the meaning of Mental Capacity Act 2005, to conduct the proceedings) and there is no one suitable and willing to act as their "litigation friend", the Official Solicitor will be prepared to act as litigation friend subject to his or her costs being covered.
In the case of an adult, evidence of incapacity is required and the Official Solicitor has a standard form of certificate for completion by doctors to ascertain the question of capacity, if that issue has not already been specifically addressed in a medical report.
In the case of a child it is possible for that child to apply to the court for an order dispensing for the need for a litigation friend - CPR 21.2(3). Otherwise a child under 18 requires a litigation friend for all civil proceedings.
Where a protected party has assets, which are administered under the jurisdiction of the Court of Protection, the Official Solicitor will require the authority of the Court of Protection to act and for his costs to be met from the protected party's estate. In any other case, the Official Solicitor will either require legal aid to be obtained on behalf of the person under disability or, in the case of an incapable defendant, may require a non legally aided claimant to give a costs undertaking in respect of the costs incurred in acting for the defendant.
Requests for the Official Solicitor to act should, in the first instance, be made in writing giving details of the proceedings and relevant facts and include the reason why the Official Solicitor's involvement is required and confirmation that there are no other suitable candidates to take on the role of litigation friend.
*A litigation friend is the person the court appoints to act on behalf of the child/ protected party.
For further information please contact the civil litigation team on 020 7911 7136