The High Court has refused an application to make a woman personally liable for any future costs in her estate claim if a next friend is appointed to conduct the case on her behalf.
The main proceedings concern the woman’s claim for provision from the estate of H.T., whom she says she lived with in an intimate and committed relationship for more than 33 years. The claim is brought under section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. The judgment does not determine that claim.
The proceedings began in 2015 and had been at hearing for 21 days when they were adjourned. The woman’s legal representatives raised concerns about her ability to give instructions and take part in the trial. A forensic psychiatrist instructed by them assessed her and concluded that she lacked functional capacity to give instructions, receive advice and participate in the litigation. That was the psychiatrist’s opinion; the court did not make findings about her general capacity.
Her legal representatives said they could not find a professional willing to act as next friend. Three family members or close friends they considered suitable were concerned about the time commitment and potential personal costs liability. They argued that without an order placing any future costs liability on the woman, they could not secure a next friend.
The respondent opposed the order, disputed the psychiatrist’s conclusions and reserved the right to challenge any proposed next friend. The respondent also argued that wardship was the appropriate route if the woman lacked capacity. No next friend had been identified, and the woman had not received separate legal representation on the costs application.
Justice Emily Egan said the court would assume, for the purpose of deciding this application, that the woman was of unsound mind under the relevant court rule. The judge said she was prepared to assume that an inherent jurisdiction to make such an advance costs order might exist where proceedings would otherwise inevitably lapse, but that it should be used sparingly and only where no other avenue was available.
The judge refused the application. She said wardship or supports under the Assisted Decision-Making (Capacity) Act 2015 might provide a route for the case to continue, and the court had not established that the proceedings would inevitably lapse. She also found no basis to depart from the usual approach under which a next friend may be liable for costs awarded against a plaintiff, with any possible indemnity from the plaintiff’s assets considered separately. The court made no order appointing a next friend and did not decide whether wardship was appropriate.
The judge said the legal representatives could explore wardship or, when available, supports under the 2015 Act. They could renew the costs application if those routes proved unavailable. The judge said she could not envisage a renewed application of this kind being granted without separate legal representation for the woman.