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.
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