Analysis
The parties were four brothers. The claimant was the eldest brother and patriarch of the family. The litigation generally concerned the legal effectiveness or otherwise of two letters, by which the brothers had, inter alia, appointed one another as executors, and had stated that assets held in the name of any individual brother belonged to all four. Through an oversight, the claimant’s advisers had failed to file a certificate of suitability from his litigation friend (and daughter) when the claim was originally made, as required by CPR 21.5. A certificate was later filed together with an application seeking an order confirming the daughter’s appointment as the claimant’s litigation friend through the filing of the certificate, and giving effect to all steps taken before the filing was made. Later, a further application sought an order remedying any error of procedure under CPR 3.10(b) or alternatively appointing the daughter as litigation friend under CPR 21.6.
The defendants made an application for an order that a person who is not party to the proceedings may not obtain a copy of the statement of case from the court records without permission and that any application by a non-party, for permission to obtain a statement of case or any other document from the court records, or any communication with the court, or a copy of the transcript of any hearing, should be made by an application under CPR 23, and that a copy of any such application should be served on the parties with at least three clear days’ notice.
The court held that CPR 21.5 specified the only manner in which a litigation friend could be appointed without a court order. If CPR 21.5’s requirement that a certificate of suitability had to be filed at the time when the claim was issued was to be overlooked, that would require a court order under CPR 3.10(b), and it was preferable simply to order the daughter’s appointment under CPR 21.6, rather than taking a view as to whether CPR 3.10(b) could be used to remedy the procedural error (ie the failure to file the certificate of suitability) under CPR 21.5.
The court would exercise its power under CPR 21.6 notwithstanding the absence of medical evidence of the claimant’s incapacity; there was no requirement in the rules to provide medical evidence and in this case, where there was no real issue about capacity (since the defendants did not dispute that the claimant lacked capacity), the certificate provided by the daughter, a close family member who lived with and cared for the claimant daily, together with the evidence of the claimant’s wife, was enough.
A person was not prevented from being a litigation friend simply because they had a personal interest in proceedings where that interest aligned with that of the protected party, nor because they had their own independent reasons for wishing the litigation to be pursued. It would not be appropriate to appoint an independent party to act as litigation friend since the claimant’s daughter satisfied the conditions in CPR 21.6 and since her acting brought benefits in cost, time and existing familiarity with the family’s complicated affairs.
There was no good reason to depart from the rule in CPR 5.4C(1) and r39.9, allowing access as of right to statements of case, judgments or orders given or made in public, or to a transcript of any public hearing, and therefore such should be provided without any further enquiry. Specific provision to the contrary could be made at a later time should such prove necessary. As to documents for which one could apply under CPR 5.4C(2), it would be appropriate to impose a limited restriction, requiring that any such application be made on three clear days’ notice to the parties, in which they may provide written submissions addressing whether access ought to be granted, and if so, whether the documents sought should be redacted. This would not be a material derogation from the principle of open justice.
JUDGMENT MRS JUSTICE FALK: [1] This is my decision on applications heard in private pursuant to an order made by Morgan J on 12 December 2019. The applications comprise an application by the First Defendant made on 6 December 2019 seeking derogations from the open justice principle (the ‘Privacy Application’) and an application by the …Continue reading "Hinduja v Hinduja & ors WTLR(w) 2021-06"