Judge: Master Clark
Citation:  EWHC 1006 (Ch)
Flora Keays is the adult child of the late Cecil Parkinson and Sara is her mother. Whilst a child, Sara obtained a maintenance order against Cecil Parkinson in the sum of £20,000 per annum for Flora. Cecil Parkinson continued that payment after Flora’s majority because Flora suffers from serious physical and mental disability.
Cecil Parkinson died on 22 January 2016 and his will made no provision for Flora (or Sara). He referred to a life insurance policy of which Flora was said to be the sole beneficiary.
The £20,000 per annum payments stopped and Flora brought Inheritance Act proceedings seeking financial provision from Cecil Parkinson’s estate. The executors alleged inability on the part of Sara to conduct the litigation on Flora’s behalf and a conflict of interest and brought an application for her removal as litigation friend. CPR21.7 gives the court power to terminate a litigation friend’s appointment and appoint another but does not give any guidance as to how that discretion should be exercised.
So far as authority is concerned, Master Clark relied on, in respect of adverse interest, a passage from Davilla v Davilla  B14 (Ch) (a judgment of Laurence Rabinowitz sitting as a deputy High Court Judge) at paragraph 137 as follows:
(1). As noted above, CPR 21.4(3)(b) stipulates that in order for a person to act as a litigation friend that person must have “no interest adverse to that of the …protected party”. The relevant inquiry here is directed towards the conduct and outcome of the litigation for which the individual is to be appointed as litigation friend, and it will in most cases not be relevant to search, outside the bounds of the particular litigation, for some factor that might suggest some potential conflict between the interests of the party and the interests of the litigation friend unless it can reasonably be said that this potential conflict may also affect the manner in which the litigation friend is likely to approach the conduct of the litigation itself.
(2). Moreover, what this prohibition is directed towards is an interest that is “adverse” to that of the protected party. It follows that the fact that the person appointed as litigation friend has his own independent interest or reasons for wishing the litigation to be pursued ought not, in general, to be a sufficient reason for impeaching that appointment. Such an interest would, at least in general, run in the same direction as the protected party rather than being adverse to the protected party’s interests.
(3). However, it is necessary in this context to have regard to the decision of the Court of Appeal in Nottingham CC v Bottomley and another  EWCA Civ 756, the only authority on this issue to which I was referred. In dealing with the position of a litigation friend, Stanley Burnton LJ (with whom Rix and Maurice Kay LLJ agreed) emphasised the need for the litigation friend to “seek the best outcome” for the protected party and for a litigation friend to “be able to exercise some independent judgment on the advice she receives from those acting for a claimant, and …be expected to accept all the advice she is given”, something that might be difficult where, as in that case, the litigation friend worked for an organisation that would benefit from a settlement in a form that might not necessarily be to the benefit of the protected party itself.
(4). This highlights the fact that, even where the interests of the protected party and litigation friend generally run in parallel or coincide, this does not of itself preclude the possibility that, in some contexts, those interests might diverge and become adverse. Whether or not that is so will, of course, always depend upon the facts of the particular case.
Master Clark rejected the executors’ allegations against Sara Keays of conflict of interest and lack of ability to conduct the litigation. Sara Keays had, however, agreed to the appointment of an independent solicitor as Flora’s litigation friend but the executors would not agree to her choice, hence the need for the hearing.
As Master Clark noted at para 47:
The application notice seeks the appointment of a solicitor proposed by the executors as being an appropriate litigation friend. That is an unusual application. The practical reality is that the litigation friend will have extensive dealings with the parent or person responsible for the child or protected party. The court should therefore in my judgment be reluctant to impose a litigation friend on the parent or responsible person; and should only do so if there is no other viable candidate.
Master Clark, further, noted that the executees could not veto a solicitor chosen by Sara: provided that the solicitor was otherwise a suitable appointee, she should be entitled to choose the solicitor that she preferred.
The executors gave a number of bases for objecting to the solicitor chosen by Sara, but ultimately accepted that she could fairly and competently conduct the proceedings on the claimant’s behalf. However, they nonetheless submitted that it would not further the overriding objective for her to be appointed, when personal difficulties had arisen between her and the partner acting for the executors. However, Master Clark noted that “the suggestion that the overriding objective requires harmonious personal interactions between solicitors acting for opposing parties seems to me to be unrealistic” and that, in any event, it would be possible to circumvent any such personal difficulties. In the result, therefore, Master Clark appointed the solicitor of Sara’s choice.
At the end of her judgment, Master Clark remarked upon the fact that the executors were not taking a neutral stance as regards the claim or the application. She stated that that was not desirable as costs attributable to the role of an executor as such in a claim such as this ought to be clearly distinguishable from those incurred in defending the claim, see CPR PD 46, para 1.
The circumstances of this case are somewhat unusual, but they provide a useful reminder of the meaning of “adverse interest” for purposes of identifying whether a person is a suitable litigation friend. The observation that the court should be reluctant to impose a litigation friend over the choice of that of a parent or responsible person in civil proceedings sits at interesting odds with the position in relation to the appointment of litigation friends before the Court of Protection, where (perhaps as a function of the inquisitorial nature of the proceedings) the views of others as to who might constitute a suitable litigation friend play much less of a role.
Finally, in the context of litigation capacity more generally, the facts of this case arguably pale into comparison to the fascinating case of Wembley v Wooten  FamCA 334, determined recently in Australia, where in the context of determining that a man did, in fact, have capacity to conduct parenting and property proceedings, the court had to consider whether the man’s ability to give instructions was affected by, inter alia, alcohol consumption, his heavy chain smoking, and his focus on proving that he was right and his legal representatives were wrong. As Macmillan J noted: “[t]he husband in this case is not the first nor will he be the last litigant who thinks he is smarter than those advising him. Nor will the husband be the first or last litigant to make foolish decisions. That in my view does not make him a person with a disability.”