Mental Capacity Case

B v B

Bennett J.
[2010] EWHC 543

Summary: Mrs B divorced her husband. There then followed ancillary relief proceedings, in relation to their assets and liabilities, and contact proceedings with regard to their six children. Mr B lacked litigation capacity due to a delusional thought disorder and the Official Solicitor agreed to act for him as his guardian ad litem (now litigation friend). The legal bill incurred by the Official Solicitor was around £100,000. After regaining capacity, Mr B contested his liability to pay these costs on various grounds. These included the Official Solicitor's apparent failure to seek public funding.

Bennett J. held that an application for public funding could not have sensibly been made because of Mr B's hostility and lack of cooperation with the Official Solicitor. The second avenue of funding, namely obtaining from Mr B's assets, would also have been inappropriate because he was still a patient. As a result, all of the litigation costs had to be funded by the Official Solicitor out of public revenue. In the absence of unreasonable conduct, Bennett J. held that the Official Solicitor was entitled to be reimbursed for his costs on an indemnity basis from the person in whose best interests he had acted as guardian ad litem.

Comment: Although these were family proceedings involving the Official Solicitor as guardian ad litem, the principles are equally applicable to litigation friends acting in Court of Protection proceedings. The Court endorsed the view expressed in Re E (mental health patient) [1984] 1 All ER 309 at 312, that the main function of litigation friends is to carry on the litigation on behalf of the incapacitated person in their best interests. They must make all the decisions that the person would have made had he been able to. Importantly, litigation friends are not litigants: their functions were described as "essentially vicarious" and they are responsible to the Court for the propriety and the progress of the proceedings.

Insofar as costs are concerned, the Court noted that by acting, litigation friends render themselves personally liable to the other parties for the costs of unsuccessful proceedings. However, they are entitled to be indemnified out of the incapacitated person's estate "if it was proper to institute the proceedings, and they have been conducted with propriety".

The Court of Protection Rules 2007 contain wide-ranging powers to fund the Official Solicitor's costs. Rule 163 provides, inter alia, that they "shall be paid by such persons or out of such funds as the court may direct". Funding the litigation friend of last resort is becoming increasingly important. Given the incapacity of the litigant, it raises access to justice issues which bear upon Article 6 ECHR. This case shows that where the Court requests the Official Solicitor to act as litigation friend for a person lacking litigation capacity and the Official Solicitor accepts the appointment, that person will be liable for the Official Solicitor's costs even if he objects to the appointment so long as the Official Solicitor acts properly.