George Major (by his litigation friend Katherine Gee) v Kalaivani Jaipal Kirishana

George Major (by his litigation friend Katherine Gee) v Kalaivani Jaipal Kirishana

The judge erred in law by failing to give primary and determinative weight to the requirements of CPR 21.4(3), especially the litigation friend's consent and ability to act fairly and competently. Once a litigation friend withdraws consent and doubts their ability to act, only exceptional circumstances justify refusing discharge. The loss of a trial date and absence of a substitute are not such circumstances. The decision to refuse discharge was wrong and outside the proper exercise of discretion.

Parties
Appellant/defendant (protected Party): George Major; Litigation Friend (appellant's Litigation Friend): Katherine Gee (formerly Cowell); Respondent/claimant: Kalaivani Jaipal Kirishana
Jurisdiction
England and Wales
Judgment Date
11 September 2024
Procedural Posture
Civil Appeal / Appeal From Interim Case Management Decision
Outcome
Appeal allowed
Legal Topics
Litigation Friend Discharge, Capacity to Litigate, Civil Procedure Rules Part 21, Consent of Litigation Friend, Case Management Discretion
Civil Procedure Mental Health Law Litigation Friend Discharge Capacity to Litigate Civil Procedure Rules Part 21 Consent of Litigation Friend Case Management Discretion

Case Brief

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Parties

George Major

Appellant/defendant (protected Party)

Katherine Gee (formerly Cowell)

Litigation Friend (appellant's Litigation Friend)

Kalaivani Jaipal Kirishana

Respondent/claimant

Procedural Posture

Civil Appeal / Appeal From Interim Case Management Decision

Legal Issues

  1. 1 Whether the court erred in refusing to discharge a litigation friend who withdrew consent and cited inability to act due to mental health issues
  2. 2 Whether consent is a continuing requirement for a litigation friend under CPR 21.4(3)
  3. 3 Whether the absence of a substitute litigation friend precludes discharge

Ratio Decidendi

The judge erred in law by failing to give primary and determinative weight to the requirements of CPR 21.4(3), especially the litigation friend's consent and ability to act fairly and competently. Once a litigation friend withdraws consent and doubts their ability to act, only exceptional circumstances justify refusing discharge. The loss of a trial date and absence of a substitute are not such circumstances. The decision to refuse discharge was wrong and outside the proper exercise of discretion.

Court Disposition

Appeal allowed

Orders

  • Order of 4 June 2021 refusing discharge of litigation friend set aside
  • Ms Cowell's appointment as litigation friend terminated