Procedural requirements for a PI claim involving a protected party
Procedural requirements for a PI claim involving a protected party

The following PI & Clinical Negligence guidance note provides comprehensive and up to date legal information covering:

  • Procedural requirements for a PI claim involving a protected party
  • The litigation friend
  • Deputy of the Court of Protection as litigation friend
  • Litigation friend—no court order
  • Appointment of the litigation friend
  • Ending the appointment of a litigation friend
  • Settlement
  • Limitation

The litigation friend

A protected party means a party, or an intended party, who lacks capacity to conduct the proceedings within the meaning of the Mental Capacity Act 2005. For further guidance on mental capacity, see Practice Note: Mental capacity in personal injury claims. The term ‘protected party’ may also sometimes be used, in the context of litigation, to refer to a child but this Practice Note is specifically directed to those who are protected parties because they lack mental capacity.

It must be borne in mind at all times that the question of whether a claimant has capacity to conduct the litigation is a separate issue from that of the capacity to manage their own financial affairs. In many cases, the claimant will be lacking in mental capacity to understand and manage all aspects of their affairs (for instance, those who have suffered extremely severe brain injury with resulting in gross cognitive impairment) and this may mean that appointment of a deputy is required.

A protected party must have a litigation friend to conduct proceedings on their behalf.

Where, after any proceedings have begun, a party becomes a protected party, no party may take any further steps in the proceedings without the permission of the court until the protected party has a litigation friend. Any steps taken before the appointment of