Using A Litigation Friend To Claim Personal Injury Compensation

In this article we explain what a litigation friend is.

You will find out when you need a litigation friend to help you claim compensation; who can be your litigation friend; how one is appointed; why the court must be involved to approve the settlement of your claim when you are assisted to claim.

You can access our specialist solicitor free help at any time.

What is a litigation friend in a personal injury claim?

A litigation friend is a person who provides instructions on your behalf when making your claim for personal injury. This person will communicate with your solicitor to run your claim in your interests.

When do you need a litigation friend to help you claim personal injury compensation?

There are two instances when you will need a litigation friend to help you claim compensation for personal injury:

Personal Injury Claims For Children / Minors

You will need a litigation friend to help you make your personal injury claim if you are classed as a child.

In the UK – a minor (or child) is classed as a person who is under the age of majority. The age of majority is 18 throughout the UK – but Scotland (which has a different legal jurisdiction) passed an Act in 1991 giving legal capacity at the age of 16 years.

Therefore, if you are under 18 years of age in England and Wales and wish to make a claim for personal injury – you must have a litigation friend to manage your claim and provide instructions to your solicitor.

In Scotland – you will need a litigation friend to manage your claim only if you are under the age of 16 years.

Changes to the age of majority

The age of majority was reduced from 21 to 18 years – which took effect on 1 January 1970. As there are three legal jurisdictions in the UK – different Acts were required to affect the change:

England & Wales

In England and Wales – the law which defined the age a child becomes an adult is the Family Law Reform Act 1969

Scotland

In Scotland the pieces of legislation that defines when a child becomes and adult and has full legal capacity to make decisions are Age Of Majority Act (Scotland) 1969 and Age of Legal Capacity (Scotland) Act 1991 (allowing full legal capacity at the age of 16 years)

Northern Ireland

In Northern Ireland – the statute that defines when you are considered an adult is – Age of Majority Act (Northern Ireland) 1969

Personal Injury Claims For An Adult Who Lacks Sufficient Capacity

If you are an adult (over 18 years of age in England) – you might lack sufficient mental capacity to manage your own personal injury claim (whether making the claim yourself or using a solicitor).

Manage is a broad term to include: an appreciation of the steps you should take to conduct the claim, be able to partake in the decision making process in the claim, understand the risks of making a claim and provide instructions to your solicitor – if a solicitor is involved.

Some mental infirmities – such as a learning disabilities, psychological disorders or mental illnesses are just a few examples of why you may be unable to manage your personal injury claim.

There is a presumption that an adult has mental capacity. However, if a litigation friend is considered necessary, a psychological assessment by an approved psychiatrist / psychologist to show lack of capacity may be necessary.

Watch out – the test for capacity to manage a personal injury claim on your own behalf is very different than the test to have someone manage all your affairs. The test to manage all your affairs being a much higher level of mental incapacity).

Who can be a litigation friend in a personal injury claim?

Typical litigation friends are parents, guardians or family members.

However, the court can in theory appoint anyone to be a litigation friend – even a solicitor.

If there is no one suitable to be your litigation friend – the Official Solicitor can act as your litigation friend.

How is your litigation friend appointed?

You would clearly choose the person you wish to be your litigation friend. However, ordinarily the solicitor you have instructed to pursue your personal injury claim will see to the appointment.

Your solicitor will file at court the necessary documentation. This will include a certificate of suitability or, alternatively the court order appointing you as a deputy and giving permission that you can act as the litigation friend in the personal injury claim for compensation.

How is a personal injury claim concluded on behalf of a child or protected party?

Your claim can only conclude by having a court approval hearing when a litigation friend is involved in making your claim.

At the approval hearing – the court reviews the evidence and ensures that the compensation settlement agreed by the parties is sufficient. Should the court be satisfies it will deem that your claim is safe to conclude.

In the case of a child – this will take place by way of a minor settlement hearing / infant approval hearing and the compensation monies will be paid into the Court Funds Office until the child reaches the age of majority (18 years In England and Wales).

Litigation Friend Summary And Next Steps

In this article we have explained why children and adults lacking sufficient mental capacity both require a litigation friend to pursue a claim for personal injury.

See our child accident claim guide – explaining the process from beginning to end in making a claim for personal injury for children.

Specialist Personal Injury Solicitor Free Help

If you believe you may need a litigation friend, are a parent of a child injured in an accident or you are responsible for someone with a mental infirmity who may need to claim compensation – take advantage of our specialist solicitor online and telephone help.

You can discuss your accident with us, arrange a specialist solicitor callback and have any questions answered before deciding whether to proceed with a claim.