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PI and Civil Litigation

Law - practice - procedure

Anthony Gold Solicitors , 05 DEC 2014

(1) Louise Bradbury, (2) Maureen Dalton (3) Emma Measey (4) Julie Nicholson (5) Jennifer O’Donnell v (1) Ian Paterson (2) Spire Healthcare Ltd (3) Heart [2014] EWHC 3992 (QB)

(1) Louise Bradbury, (2) Maureen Dalton (3) Emma Measey (4) Julie Nicholson (5) Jennifer O’Donnell v (1) Ian Paterson (2) Spire Healthcare Ltd (3) Heart [2014] EWHC 3992 (QB)
Civil procedure – Litigation friends – Protected parties – Official solicitor – Funding

High Court, Queen’s Bench Division: 28 November 2014

Foskett J
Summary
The court allowed the Official Solicitor to withdraw as litigation friend for the first defendant, even though no substitute had been identified. This left proceedings in limbo, since the first defendant lacked capacity for litigation and the claims could not proceed while he had no litigation friend.

Detail
The claimants alleged that the first defendant had performed negligent surgery on them in hospitals operated by the second and third defendants. The Medical Defence Union (MDU) instructed solicitors on behalf of the first defendant. These solicitors obtained a psychiatric report in late 2013 which found that their client lacked capacity. The Official Solicitor agreed to act as litigation friend for him, with the legal costs still being covered by the MDU.

When the MDU informed the Official Solicitor that they would in fact not be assisting the first defendant with defending these claims, the Official Solicitor applied to be discharged as litigation friend. This application was granted by McGowan J on 13 October 2014. The affected claims were to be stayed until a new litigation friend had been appointed, since under CPR 21.2 a protected party must have a litigation friend.

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Foskett J rejected the suggestion that while a party lacks capacity their litigation friend can never be discharged without a replacement being identified. It would not be proper to compel a litigation friend to continue to act when their legal cost could not be guaranteed. Rather than simply leave the case stranded, the judge made a number of proposals. He would transfer the proceedings to Charles J, Vice President of the Court of Protection, who was qualified to deal with the overlapping procedural and capacity issues. The claimants and other defendants would fund expert assessment of the first defendant with respect to capacity for litigation and to managing his property and affairs. The police would be required to disclose to the Official Solicitor any material relevant to capacity revealed by their investigation into the first defendant. This way the Official Solicitor might have legal costs funded out of the first defendant’s own funds, possibly through the Court of Protection’s intervention or by his own consent, as appropriate.

Comment
These claimants have been very unlucky to have extra procedural hurdles placed in their way through no fault of their own, but it is difficult to see how it might have been avoided without sacrificing the protections which safeguard protected parties.
Adam Dyl and Robin Stewart, Anthony Gold
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