Can a rule be implied into tribunal rules to provide for the appointment of a litigation friend? Yes, held the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department, an asylum case and the EAT in Jhuti v Royal Mail.
In the Court of Appeal Underhill LJ declared a strong view that his previous view on this in Johnson v Edwardian International Hotels was wrong.
When proceedings concern a vulnerable individual it is imperative to ensure they can fully participate in proceedings. A decision taken without regard to the need to safeguard and promote the welfare of a vulnerable person will not be in accordance with law. In a rare case where a litigation friend is essential directions may be made for their involvement during those parts of the hearing where it is necessary.
The tribunal rules have no equivalent to the CPR Part 21 provision for the appointment of a litigation friend. However, it is a breach of the common law duty of fairness if a claimant cannot make representations, give and test evidence or instruct a solicitor.
The Court of Appeal held that a rule can and should be implied to ensure that principles of natural justice, which is fair play in action, are applied. Such powers are not but should be defined and regulated in the rules
The EAT subsequently held (only four days later) in Jhuti v Royal Mail Group UKEAT/0062/17 that whilst the rules do not expressly confer this power it should be read into the rules. The Law Society intervened in the case for a mentally vulnerable claimant who needed to appoint a litigation friend. The Law Society argued that this not only met the common law duty of fairness and the right of access to the courts but it avoided placing the solicitor in conflict with the ethical duty to ensure a client has capacity.
It is therefore now possible to appoint a litigation friend in tribunal proceedings. We wait to see if the rules will be amended in due course to include a specific power.
Written by Karen Jackson.