Sometimes when a family member has been involved in an accident which is not their fault, they may not be able to claim compensation themselves. This could be because of the severity of their injuries, because they have reduced mental capacity, are under 18 years old or are vulnerable. The law allows these groups of people to pursue a claim for compensation if someone else represents them through the process. This representative is known as a Litigation Friend.
Who can be appointed as a Litigation Friend?
A Litigation Friend is usually someone close to the injured person and can include:
- A parent or guardian
- A family member
- A trusted friend
- A professional advisor
- A social worker
The person who is appointed as a Litigation Friend must always act in the best interests of the injured person. They cannot have any conflict of interests with the person they are representing that may cause them to make decisions in the case that are not in the best interests of the injured person. If you satisfy this requirement and fall under one of the above categories, then you may be able to pursue a claim on behalf of a family member.
What does it mean if my family member is not mentally capable?
Having mental capacity means that someone is able to make their own decisions. Many individuals can be classed as not having mental capacity, such as those with pre-existing mental illness or learning difficulties and these people will be deemed as being unable to manage the process of making a claim themselves. Sometimes, if an individual suffers life-changing injuries such as a traumatic brain injury, then the effects of their injuries can cause them to lose capacity, even if they had capacity before the accident. In all of these instances, the injured person would need a Litigation Friend.
It can sometimes be hard to determine if someone does have capacity or not after a serious injury. In cases such as this, we will involve a specialist who can undertake a mental capacity assessment. This assessment will decide whether someone can proceed with their own claim or whether they need a Litigation Friend.
My child has been involved in an accident, can I claim compensation on their behalf?
If your child has been involved in an accident, your main priority will be to gain access to the best possible treatment for them to get back on the road to recovery as soon as possible. But you may also wish to start the claims process on their behalf.
If a child is involved in an accident, they can claim compensation up to their 21st birthday i.e Court proceedings must be commenced before their 21st birthday. However, if they decide to pursue a claim before their 18th birthday, they will need a Litigation Friend. This is due to the fact that the law states that a person under the age of 18 is not yet an adult. Therefore, a child under this age is not lawfully able to conduct their own legal proceedings. Once the child turns 18 years old, they can then proceed with their claim without the need for a Litigation Friend but must commence Court proceedings within 3 years.
What responsibilities do I have as a Litigation Friend?
In your role as a Litigation Friend for a child or protected party, you have a number of important responsibilities, such as:
- Making decisions in the best interest of the protected party or child
- Communicating and cooperating with the solicitor about the claims process
- Listening carefully to the solicitor’s advice so that you can provide clear and proper instructions to the solicitor, for example, whether to accept or make an offer
- Ensuring your loved one receives the appropriate medical treatment and attends medical examinations
Can I stop being a Litigation Friend?
You will usually stop being a Litigation Friend in the following situations:
- when the case ends
- when you or someone else applies to the Court for a replacement Litigation Friend
- when the adult who did not have capacity regains capacity again
- when a child turns 18 and is legally an adult
Your duty as Litigation Friend will end when the case is settled and the injured person has received their settlement amount. If the injured person is under 18, you will act as their Litigation Friend until they turn 18.
If you would like to discuss the possibility of claiming on behalf of someone else, or you would like to know more, please do not hesitate to get in touch.
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