Position where Official Solicitor ceases to act as a litigation friend


The defendant is a consultant being sued by former patients. The Medical Defence Union is his defence organisation and it took out an insurance policy for its members to fund their defence costs. However, the policy in question in this case did not cover the defendant for the claims being made against him. The defendant’s health deteriorated and a psychiatric report supported the view that he lacked capacity to give instructions in the litigation. Accordingly, the Official Solicitor was appointed as his litigation friend. However, the Official Solicitor applied to court for an order discharging him as the litigation friend because of the withdrawal of funding. An order was made staying the claim until such time as a new litigation friend has been appointed (hence effectively bringing the whole litigation to a stop) and an appeal was brought against that order.

Foskett J held that the court did have power to terminate a litigation friend’s appointment without first identifying a suitable substitute. Furthermore, “the position of enforced continuation as a litigation friend would undoubtedly be unwelcome and uncomfortable”. Nor is the consent of any person to act as a litigation friend irrevocable. It was also not possible to force the MDU to fund the Official Solicitor.

The judge went on to discuss potential avenues for securing the funding of the Official Solicitor and held that the case should be transferred to the Court of Protection (where it could then be decided if the defendant did indeed lack capacity), and he ordered payment to be made by the co-defendants in order to “kick start the process”. The litigation itself remained stayed for 8 weeks (after which an application could be made to have it lifted).