Who will be the Litigation Friend?

  • Posted: 11th May 2018
  • Author: Noel McNicholas
  • Link: Permalink

This is an interesting decision concerning the power of the Court to determine whether a party to proceedings should have a say in the appointment of a representative on behalf of an opposing party who did not have capacity to represent herself.   

The case concerns the Estate of Cecil Parkinson, former Chairman of the Conservative Party who had a child with his mistress, Sarah Keays.  The child, Flora, has moderately severe mental and physical disabilities.  Although the proceeds of a substantial life policy was left to her albeit as yet unpaid, no provision was made for Flora her under her father’s Will.  Therefore Flora via Sarah Keays as her litigation friend, commenced a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. 

An application was later made on behalf of the Executors of the Estate (who are the first named defendants to the claim) to remove Sarah Keays as litigation friend.  Citing a history of her highly litigious conduct and bizarre perception of Mr Parkinson’s family, the Executors sought to argue she could not fairly and competently conduct proceedings on behalf of Flora or that she had an interest adverse to Flora.  Sarah Keays could not afford a solicitor to act on her behalf but had instructed a barrister from time to time under the direct access scheme. 

There was no evidence that Sarah Keays was not a suitable litigation friend.  And whilst Sarah Keays did not object to the appointment of a solicitor to act for her after the Estate agreed to fund legal representation for Flora, there was also a dispute over who the replacement should be.  Sarah Keays’ first choice was an experienced contentious probate solicitor who had conducted many 1975 Act claims.  The Court took the opportunity to state that a litigation friend typically had extensive dealings with the parent or person responsible for the child or protected party.  Therefore, the Court should be reluctant to impose a litigation friend on the parent and would only do so if there was no other viable candidate.   That was not the position in this case and Sarah Keays should remain entitled to appoint the solicitor of her own choice.  The criticism of the solicitor chosen by Sarah Keays was also not made out. 

Finally, the Court stated its view that the Executors had not taken a neutral position by their conduct as they are required to do so.   It stated the Executors had actively defended the claim to the point it had made this application to determine who should be the litigation friend.  Although the Executors stated their position was supported by the beneficiaries, this was not desirable because costs attributable to the Executors' neutral role in the claim ought to be clearly distinguishable from costs incurred in opposing the claim.  It is a timely reminder that Executors must act neutrally in 1975 Act claims at all times.

If you have any queries concerning any contentious probate matter, please call Noel McNicholas on 01455 620405 or by email – nm@thomasflavell.co.uk

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This article was written by Noel McNicholas. If you would like further information on the issues raised contact Noel to discuss in more detail.

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