WHEN WILL A LITIGATION FRIEND BE REQUIRED TO PAY THE OTHER PARTY’S COSTS?

WHEN WILL A LITIGATION FRIEND BE REQUIRED TO PAY THE OTHER PARTY’S COSTS?

A recent decision, see https://www.civillitigationbrief.com/2020/08/24/when-should-a-litigation-friend-be-liable-for-costs-interesting-court-of-appeal-decision/ – may have made it more difficult for a successful party to recover their costs from a litigation fried (a litigation friend is required to make decisions for a party who is a minor or lacks capacity).

The Court rejected the idea, that if the party would have been ordered to pay the other side’s costs but for the involvement of a litigation friend, there should be a presumption that a costs order will be made against the litigation friend.

The Court considered the policy problems with such an approach, including the need to avoid deterring suitable litigation friends.

Any party involved in litigation involving a litigation friend should be mindful of this decision. A cautious approached is also required if a party is legally aided (as costs are not normally recoverable against a legally aided party even though if that party succeeds, their solicitors will normally pursue the other party for their costs at the commercial rate as opposed to the much lower legal aid rate) or simply impecunious.

A costs order like a judgment, is simply a piece of paper that is only useful if it can be enforced. A pragmatic approach should therefore be adopted where appropriate, to bring litigation to a conclusion as inexpensively as possible.