7. Parties Flashcards
When do the special provisions in part 21 apply?
They apply in proceedings involving children and protected parties and set out how a person becomes a litigation friend and does not apply to proceedings under part 75, enforcement of specified debts by taking control of goods, or applications in relation to enforcement of specified debt by taking control of goods where one of the parties is a child
When is a litigation friend required?
A protected party (person without capacity) must have a litigation friend to conduct proceedings on their behalf and a child, unless the court makes an order, must also have a litigation friend.
When can a child not have a litigation friend?
Where a court makes an order allowing them to conduct proceedings without a litigation friend.
An application for an order may be made by the child, if the child already has a litigation friend then must be made on notice to litigation friend, and if the child has no litigation friend, may be made without notice.
Where the court has allowed a charge to conduct proceedings without a litigation friend but it later appears a litigation friend is desirable, then an order may be made requiring a litigation friend
When does a litigation friend become necessary?
A person may not, without the court’s permission, make an application against a child or protective party before proceedings have started, or take any step in proceedings except issuing and serving a claim form or applying for the appointment of a litigation friend until the child or protected party has a litigation friend.
If during proceedings are party lacks capacity to continue conducting the proceedings no party may make any further step in the proceedings without the court’s permission until the protected party has a litigation friend. Any step taken before child or protected party has a litigation friend has no effect unless the court orders otherwise
Who may be a litigation friend without a court order?
A deputy appointed by the Court of Protection with power to conduct proceedings on the protected parties behalf is entitled to be the protected parties litigation friend in any proceedings to which your deputies power extends. If nobody has been appointed by the court or, in the case of protected party, appointed the deputy, a person may act as a litigation friend if they can fairly and competently conduct proceedings on behalf of the child or protected party, have no interest adverse that child or protected party, and where the child or protective party is a claimant, undertake to pay any costs at the claim in it ordered to pay, subject to any rights to be repaid from the assets of the child or protected party.
What are the rules on settlement, compromise, or payment for protected parties or children?
Where a claim is made by or on behalf of a child protective party, or against the child or protected party, no settlement, compromise, or payment and no acceptance of money paid into the court shall be valid, so far as it relates to the claim by, or on behalf of, or against the child or protected party, without the approval of the court.
Where before proceedings in which a claim is made by or on behalf of or against a child or protective party or begun, an agreement is reached for a settlement or compromise or a payment which relates to the claim and the sole purpose of the proceedings is to obtain the approval of the court to assessment or compromise or a payment which relates to the claim, the claim must be made using the procedure set out in part 8 and include a request to the court for approval of the settlement or compromise or payment.
What documents must support any application or request for approval of a settlement, compromise, or other payments in cases where there is a child or protected party?
- A draft consent order setting out the proposed settlement terms
- details of whether or to what extent liability is admitted
- the age and occupation of the child or protected party
- confirmation that the litigation friend approves of the settlement
- a copy of relevant medical, financial or other expert evidence or advice
- in a personal injury claim arising from an accident, details of the accident and of claimed loss and damage
- any documents relevant to considerations of liability
- a legal opinion on the merits of the settlement, except in very clear cases, together with any relevant instructions unless they are sufficiently set out in the opinion
If the claim includes damages for future financial loss, the court must be satisfied that the parties have considered whether the damages should wholly or partly comprise periodical payments.
Where settlement of a claim by or on behalf of a dependent child includes agreement on her son to be apportioned to the dependent child, the parties must provide to the court in addition details of the claimed loss of future earnings in respect of the deceased, and the nature and extent of the dependency.
Who can have control of money recovered by or on behalf of a child or protected party?
Where in any proceedings, money is recovered by or on behalf of or for the benefit of a child or protected party, or money paid into the court is accepted by or on behalf of a child or protected party
the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.
Directions given may provide that the money shall be wholly or partly paid into the court and invested or otherwise dealt with
Where money is recovered by or on behalf of a protected party or money paid into the court is accepted by or on behalf of a protected party, before giving directions, the court will first consider whether the protected party is a protected beneficiary.
Where a child lacks capacity to manage and control any money recovered by or on behalf of the child and is likely to remain so on reaching full age the fund will be administered as a protected beneficiaries fund.
