Litigation friend

Someone who conducts court proceedings on behalf of a child or a person who lacks the mental capacity to do so themselves — taking on real responsibility, including for costs, that the child or protected party cannot be expected to carry alone.

Can a parent just sign court forms for their child without becoming a litigation friend?

No. A child under 18 cannot conduct court proceedings in their own name, and a parent does not automatically get to act on their behalf just by being their parent. Someone — usually a parent or guardian — has to formally become the child's litigation friend, normally by filing a certificate of suitability, before they can sign statements of case, sign a statement of truth, or take any other step in the proceedings for the child.

Does a litigation friend have to be a relative?

No. For a child, it is often a parent or guardian, but it can be another suitable adult. For a protected party, it can be a deputy appointed by the Court of Protection, an attorney acting under a registered Lasting Power of Attorney that covers property and financial affairs, or another person willing and suitable to act, provided they have no interest in the case that conflicts with the child or protected party's, and can fairly and competently conduct the proceedings on their behalf.

Can a litigation friend end up paying the other side's costs personally?

Potentially, yes. Someone acting as litigation friend for a claimant normally has to confirm they will cover any costs the claimant is ordered to pay, though they may be able to recover this from the child or protected party's own assets afterwards. This is one of the reasons the role should not be taken on casually, and it is worth understanding before agreeing to act.

Do I need a solicitor to become a litigation friend?

Not necessarily. Someone can become a litigation friend without a court order by filing a certificate of suitability, which does not require a solicitor to prepare, although many people acting for a child or protected party in anything beyond a straightforward small claim choose to take legal advice given the responsibilities involved.

Why does a settlement need court approval if the litigation friend already agreed to it?

Because the litigation friend's agreement is not, by itself, treated as protecting the child or protected party's interests strongly enough. The court's approval exists precisely to check that a settlement reached on someone's behalf is not underselling their claim, particularly where the person themselves had no direct say in the outcome.

What happens if nobody is willing or suitable to act as litigation friend?

For a protected party, the Official Solicitor can sometimes be asked to act as litigation friend of last resort, though this is generally only where there is no relative, professional or other suitable person able and willing to take on the role, and where there is a means of covering the costs of doing so. This route exists mainly for adults who lack capacity; a child without an available litigation friend needs someone else within their family or professional circle to come forward, or a specific application to the court.

Who needs a litigation friend, and why

Under CPR 21.1(2), a "child" is anyone under 18, and a "protected party" is a party, or intended party, who lacks capacity to conduct the proceedings — assessed against the test in the

Mental Capacity Act 2005

, which looks at whether the person can understand, retain, weigh up and communicate a decision about the specific matter in front of them, at the time it needs to be made. Capacity is decision-specific and time-specific: someone can lack capacity to conduct High Court litigation while retaining capacity for other decisions, and capacity can also change over time.

CPR 21.2 says that, unless the court orders otherwise, a child must have a litigation friend to conduct proceedings on their behalf, and a protected party must have one in every case. The reason is straightforward: a child or a person lacking capacity cannot be expected to give instructions, weigh up a settlement offer, sign a statement of truth, or be held fully responsible if the claim goes wrong — including for costs. Someone else has to take on that responsibility so the case can proceed fairly, and so a defendant facing the claim has someone competent to deal with rather than a person the law does not treat as able to conduct their own litigation.

Who can act as a litigation friend

For a child, this is typically a parent or guardian, though it does not have to be. For a protected party, it is commonly a deputy appointed by the Court of Protection to manage their property and affairs, an attorney acting under a registered Lasting Power of Attorney that covers property and financial affairs, or another person — a relative, friend, or professional such as a solicitor — who is willing and considered suitable.

CPR 21.4(3) sets out what "suitable" means: the person must be able to fairly and competently conduct proceedings on behalf of the child or protected party, must have no interest adverse to theirs, and — where the child or protected party is a claimant — must undertake to pay any costs the claimant is ordered to pay, subject to any right to recover that from the child or protected party's own assets afterwards. That last point is easy to miss: agreeing to act is not a formality, it is agreeing to stand behind the litigation financially if it goes wrong.

The certificate of suitability

Where someone becomes a litigation friend without a court order — the usual route, rather than applying for the court to appoint them — CPR 21.5 requires them to file a

certificate of suitability

. This must state that the person agrees to act, that they know or believe the party concerned is a child or lacks capacity to conduct the proceedings, and that they meet the CPR 21.4(3) conditions above: no conflict of interest, able to conduct proceedings fairly and competently, and — for a claimant — willing to cover costs if ordered to pay them.

The certificate has to be served on the people CPR 21.5 identifies (broadly, anyone else who is a party, and, in the case of a protected party, sometimes the Official Solicitor), and a certificate of service filed showing this has been done. Only once this is done can the litigation friend take procedural steps — filing a claim form, defence, or statement of truth — on the child or protected party's behalf.

When there is no one able or willing to act

Sometimes there is no relative, friend or professional available and willing to take on the role, or willing to accept the potential costs exposure that comes with it. For a protected party, the court can in some circumstances be asked to appoint the

— a statutory office holder who can act as litigation friend of last resort. The Official Solicitor generally only agrees to act where there is genuinely no one else suitable and willing, and where there is a means of covering the cost of the office acting, such as a costs order, insurance, or funds recovered in the case itself. This is not a quick or automatic route, and it exists mainly for protected parties rather than children, who more often have a parent or other family member able to step in.

How this comes up in a small claim

Litigation friends are most familiar from personal injury claims, but the same rules apply on the small claims track. Two situations come up most often. First, a parent bringing a claim on a child's behalf — for example, a faulty product bought with the child's own pocket money, or a service paid for by the child that was not provided. The child is the claimant because it is their money and their loss, but a parent has to formally become their litigation friend to conduct the case, because the child cannot sign the claim form, the particulars of claim, or a statement of truth themselves.

Second, a claim brought against, or on behalf of, an adult who has lost mental capacity — for example, an elderly relative with dementia who was sold something unsuitable, or who owes a small debt but can no longer manage their own affairs. If that person is a defendant, whoever is pursuing the claim may need to consider whether the defendant is a protected party and, if so, whether someone needs to be appointed to defend on their behalf before the claim can properly proceed.

In either situation, the value of the claim being small does not remove the need for a litigation friend, or reduce the responsibilities that come with the role. The small claims track keeps procedure simple, but CPR Part 21 still applies in full.

Settlements need court approval

CPR 21.10 provides that no settlement, compromise or payment — including accepting money paid into court, or a voluntary interim payment — is valid in a claim by or against a child or protected party unless and until the court approves it. This applies even where the litigation friend, and everyone else involved, is satisfied the settlement is fair. The point of the rule is to give the court an independent check that the outcome is reasonable for the child or protected party, since they are not in a position to judge that for themselves and the litigation friend's agreement alone is not treated as sufficient protection.

In practice this usually means a short hearing, or a paper application, at which the court is shown the terms of the proposed settlement, an explanation of how it was reached, and confirmation that the litigation friend considers it in the child or protected party's interests, before the court decides whether to approve it. A settlement that has not been approved this way is not binding, whatever has been agreed between the parties.

A 15-year-old buys a laptop online with her own savings. It develops a fault the retailer will not fix or refund, and the amount involved — a few hundred pounds — sits comfortably within the small claims track. Because she is under 18, she cannot bring the claim in her own name without a litigation friend, so her mother agrees to act.

The 15-year-old (the claim and the money are hers)

Step filed with the claim

Certificate of suitability (CPR 21.5)

Who signs the statement of truth

The litigation friend, on the claimant's behalf

Before issuing the claim, the mother files a certificate confirming she agrees to act, that she believes her daughter is under 18, that she has no interest in the case adverse to her daughter's, that she can conduct the claim fairly and competently, and — because her daughter is the claimant — that she will cover any costs order made against her daughter, subject to any right to recover that from her daughter's own money afterwards. She then completes and signs the claim form and particulars of claim as litigation friend, and conducts the case, including any hearing, on her daughter's behalf.

If the retailer later offers to settle for a lower amount than claimed, the mother cannot simply accept it. Because the claimant is a child, CPR 21.10 means the settlement is not valid until the court has approved it — even though the money in dispute is relatively small and both the claimant's family and the retailer are content with the figure.

Civil Procedure Rules, Part 21

Official Solicitor standard instructions

Litigation Friend — Small Claims Glossary

What a litigation friend is under CPR Part 21, who can act for a child or protected party, the certificate of suitability, and why settlements need court approval.