The High Court has determined that there is no bar to a litigation friend of a child or other protected party being held liable for costs, whether acting on behalf of a claimant or defendant: the previous understanding that only the litigation friend of a claimant could be held so liable was not justified. (Barker v Confiance Ltd & Others EWHC 1401 (Ch))
A litigation friend may conduct litigation as claimant or defendant on behalf of a child or other protected party (CPR 21). Often, the litigation friend will be a parent of a child, or a family member of an individual lacking mental capacity to conduct litigation themselves. The litigation friend may incur costs, such as instructing solicitors and counsel. In pursuing litigation, as claimant or defendant, they may cause their adversaries to incur legal costs of their own.
Prior to the Barker decision, it was generally thought that only a litigation friend acting for a claimant could ever be liable for costs. This was a result of the terms of CPR 21.4(3)(c), which provides that a person may act as a litigation friend if they (i) can conduct proceedings fairly and competently, (ii) have no conflict of interest with the protected party, and (iii) where the protected party is a claimant, they undertake to pay any costs which the protected party may be ordered to pay. Because no such undertaking is required when the protected party is a defendant, it was generally thought that a defendant litigation friend could not be held liable for costs. This understanding was supported by commentary in Halsbury's Laws on Children and Young Persons (citing cases dating back to 1865). There is no mention of the position in Halsbury's on Mental Health and Capacity or Civil Procedure, or in the White Book.
The Barker decision
In Barker, the Judge held: (i) that the authorities relied on in the passage in Halsbury's did not contain an inflexible rule that a litigation friend for a defendant should not be held liable for costs, and, (ii) crucially, that the Court's general power to determine "by whom and to what extent the costs are to be paid" under s.51 of the Senior Courts Act 1981 was supplemented and not supplanted in the case of litigation friends by the requirement for an undertaking in CPR 21.4(3)(c). There was therefore no reason in principle to distinguish between a litigation friend acting as a claimant or defendant, and the litigation friend should therefore be expected to be liable for such costs as the relevant party, if acting for themselves, would ordinarily be liable to pay. The overall circumstances of the case should dictate the outcome, in line with the usual rule in CPR 44.2(4).
The Judge also confirmed that it was not appropriate to treat litigation friends as ordinary non-parties on the question of costs (as the parties to this dispute had originally done), and therefore that the case law surrounding non-party costs orders and CPR 46.2 was not relevant in this arena.
This decision is important for anyone acting as, or litigating against, a litigation friend. A potential costs liability may now be a more significant strategic consideration for anyone performing, or intending to take on, the role. A litigation friend may still have the right to repaid from the assets of the protected party, though there will not always be such assets available.