(unreported, 26 October 2012)
Practice and procedure – other
This decision of HHJ Cardinal is of some importance as providing a judicial imprimatur of a potential way out of (at least some) of the difficulties in which parties find themselves now as a result of the well-known strains upon the Official Solicitor’s office at the moment.
A relatively standard application was brought for declarations/decisions in respect of the capacity and welfare of a young man. At an interim hearing, HHJ Cardinal had to decide whether the young man’s aunt could be appointed as his litigation friend in the circumstances where the Official Solicitor had twice been asked to consider representation of AB following initial orders made by the Court but without response. Upon inquiry by the Court on the day of the hearing, the relevant caseworker at Official Solicitor office indicated that she would not be able to consider appointment of the Official Solicitor until CB’s application to be appointed as her nephew’s litigation friend had been disposed of, thereby meaning that it would take another ten weeks from the date of the interim hearing before the Official Solicitor could act as his litigation friend. The local authority expressed concerns as to the appointment of the aunt, in particular that she would not be independent or objective.
HHJ Cardinal took a clear view that AB needed representation immediately, and that he needed also to move to order reports from an independent consultant psychiatrist and independent social worker. He therefore examined CB’s application to be appointed AB’s litigation friend to see whether there were any factors which disqualified her. He did so in a robust fashion, and concluded that he would – in essence – give her the benefit of the doubt that she could fairly and competently conduct proceedings on behalf of her nephew, albeit that he would keep a watching brief on matters and would – if he started to have doubts about her role – very quickly entertain an application from the local authority to remove her.
In reaching his conclusion, and in light of the fact that the Official Solicitor was not in a position to act as litigation friend save as a last resort (and, even then, only after a delay of many weeks), HHJ Cardinal noted that the commentary to Rule 140 of the Court of Protection Rules in Jordan’s Court of Protection Practice 2012 was "perhaps a little excessive" in stating that a relative or concerned person would be likely to have a conflict of interest in acting as P’s litigation friend.
The demands upon the Official Solicitor at present are well known (his note upon acceptance of instructions is to be found here). Mostyn J in AB v LCC (A Local Authority)  EWHC 3151 (COP) gave guidance as to the circumstances under which an RPR can act as a litigation friend; we have also found that IMCAs are being appointed. The judgment of HHJ Cardinal serves as an endorsement of the appointment of a suitable family member even where, prima facie, such an appointment would be likely to bring them into conflict with other family members concerned as to P’s welfare. The robust approach adopted HHJ Cardinal in this case is to be welcomed, and we would hope that it is to be followed elsewhere as a way of seeking to ensure that the system is kept moving in a way which allows for suitably speedy determination of applications.