Bradbury & Ors v Paterson & Ors

The application raised a novel point about what the Court should do when the Official Solicitor concludes that he can no longer continue to act as litigation friend for a protected party in civil litigation because the anticipated source of funding for the Official Solicitor's costs ceases to be available.

The first defendant, Ian Paterson, was a surgeon. The claimants alleged that he had acted negligently in respect of surgery for breast cancer. It was said that towards the end of 2013, Mr Paterson had become increasingly unwell and solicitors acting for him obtained a psychiatric report which concluded that he lacked capacity to litigate.

The Medical Defence Union ("MDU") had originally agreed to fund the cost of Mr Paterson's litigation but had subsequently revised their decision and informed the Official Solicitor and other parties that it would no longer fund the litigation (or presumably indemnify Mr Paterson in respect of any of the claims).

As a result of the changed funding situation, the Official Solicitor applied to the court pursuant to CPR r.21.7 for an order that he be discharged as Mr Paterson's litigation friend in each of the five claims and at the same time the solicitors who had been acting for Mr Paterson applied to come off the record pursuant to CPR r. 42.3.

McGowan J granted both applications at a hearing at which neither the claimants nor the 2nd and 3rd Defendants were present or to which any written representations were addressed. The effect of the applications was that the proceedings had to be stayed as the litigation could not proceed where P was without a litigation friend.

An application was made for the court to set aside or vary the order of McGowan J.

It was argued on behalf of the claimants that the CPR did not allow the Official Solicitor to come off the record, leaving the protected party without a litigation friend.

The judge did not accept the argument of the claimants, preferring instead the submissions made on behalf of the Official Solicitor that:

"27. […]. Subject only to the requirement (in CPR 21.7(2)) that the litigation friend provides evidence in support of his application for an order terminating his appointment, […] there is no further requirement in CPR 21.7 requiring, for example, that he identifies a substitute.   Indeed [Counsel for the Official Solicitor] submits that CPR 21.7(1)(b) would be otiose if there were such a requirement" (paragraph 27)

28. It does seem to me that Miss Morris' submission on the construction of the rules is correct. She supplements that submission  by contending that it is clear that any litigation friend must (a) consent at the outset to his appointment (see paragraph 23 above) and (b) continue to consent throughout the duration of that appointment.  She says that, apart from anything else, a litigation friend who is unwilling to continue to act is, by definition, a person who is most unlikely to continue to satisfy the criteria set out in CPR 21.4(3) (which applies also to those appointed by court order: CPR 21.6(5)) of being a person who can "fairly and competently conduct the proceedings on behalf of the … protected party" and "has no interest adverse to that of … the protected party."  A litigation friend who is being required to act on an unwilling basis will, she submits, almost by definition have an interest adverse to the protected party because his primary interest will be in bringing the litigation to an end as speedily as possible regardless of whether this is in the interests of the protected party.  She also says, looking at matters more widely than the position of the Official Solicitor, that the reading of CPR 21.7(1) for which Mr de Navarro contends would "have a chilling effect on the ability of litigation friends to accept invitations to act."   She suggests that this would be particularly so where a case involves public funding where the criteria for such funding change on a regular basis and where, in any event, reassessment by the Legal Aid Agency of those who are publicly funded "but are on the cusp of having sufficient means not to be eligible" for such funding not infrequently leads to revaluation and the withdrawal of funding.   She suggests that no litigation friend who needed to instruct lawyers to act for him would be prepared to act unless he had a cast iron guarantee that the costs of doing so would be met whilst acting as a litigation friend".

[…]

30. […] I do not think that there is any warrant for the conclusion that the consent of any person to act as a litigation friend is irrevocable, certainly under the regime provided for by the CPR."

The judge considered the funding arrangements of the Official Solicitor (which will be familiar to those reading the Newsletter) namely that he requires funding to be provided in order for him to instruct solicitors and that money will either come from the public purse where a person is eligible, from that person's own funds or from a third party (such as an insurer).

In this case, following the removal of funding from the MDU there were no readily apparent sources of funding. The judge noted that the Official Solicitor had made an approach to Mr Paterson's two attorneys appointed under a lasting power of attorney (believed by the Official Solicitor to be for property and affairs), but they have indicated that they were not proposing to fund the litigation.

The judge held that McGowan J "was entirely justified (and almost certainly obliged) to make the orders asked of her relating to the cessation of the involvement of the Official Solicitor and [solicitors acting for Mr Paterson]".

The judge then went on to wrestle with the unfortunate consequences of such a decision, namely the stay of the proceedings, holding that "some way must be found of injecting new life into the proceedings to enable the claims to be considered properly."  The judge set down a number of directions designed to find ways of ensuring that the civil proceedings could continue and the Official Solicitor be put in funds to allow him to accept a further invitation to act as litigation friend, indicating that, in extremis, "the High Court would, in my view, have the power under its general case management provisions and/or the inherent jurisdiction of the court to direct that one or more of the parties to the litigation should fund the Official Solicitor's costs of instructing lawyers for Mr Paterson, the initial outlay to be recoverable as part of the costs of the litigation in due course" (paragraph 46(c)).

Comment

This case provides useful clarification that:

1. where a funding source is no longer in place, a litigation friend (whether the Official Solicitor or another) is entitled to seek to withdraw and such an application should be granted;
2. that whilst civil proceedings cannot proceed in the absence of a litigation friend for the protected party, the court will be creative and pragmatic in attempting to move the litigation forward.   The proposition advanced at paragraph 46(c) is, we suspect, likely to be one that is examined further in due course, either in this case or another; and
3. The Official Solicitor, whilst "litigation friend of last resort" cannot be compelled to act absent proper funding for the costs of instructing legal representatives (or, in the cases in which he acts as 'in-house' solicitor, for those legal costs).

The case is also, we suggest, of equal application in the Court of Protection given the material identical wording of CPR r.21.7 and COPR r.144.

[Note: Alex was and remains involved in this ongoing litigation as Junior Counsel for the Official Solicitor; he was not involved in the drafting of this case summary/comment.]