The Employment Appeal Tribunal held, in Jhuti v Royal Mail, that a rule can be applied into tribunal rules to provide for the appointment of a litigation friend.
Vulnerable individuals must be able to fully participate in proceedings, any decisions made without taking into account the need to safeguard and protect the welfare of a vulnerable person would be outside the law. In such a case where it is essential to involve a litigation friend directions can be made to allow their involvement during those parts of the hearing where it is necessary. This can be applied under the tribunal’s power to manage its own procedure. If this did not happen, there would be a breach of common law duty if a litigant was unable to make representations, give and test evidence or instruct a solicitor.
In Jhuti v Royal Mail, the Law Society made the decision to intervene in the case for the mentally vulnerable claimant who needed to appoint a litigation friend. It argued that this met the common law duty of fairness and right of access to the courts and also that it avoided placing the solicitor in conflict with the ethical duty that the client had capacity.
Coincidentally, in a case involving immigration tribunals in the Court of Appeal – AM (Afghanistan) v Secretary of State for the Home Department– the Court held an identical provision should be implied into the immigration rules despite no express provision existing for a litigation friend. Underhill LJ expressed, at para 48, a “strong provisional view” that a previous EAT ruling of his, holding the contrary, was incorrect.
22nd August 2017