The claimant in Mohammed v Ali & MIB [2026] EWHC 401 (KB) sustained injuries as the result of a road traffic accident which took place in 2019. The incident was caused by an uninsured driver in respect of which the MIB accepted liability in full.

DWP records disclosed shortly before trial suggested the claimant’s mother and Litigation Friend had given dishonest information which cast doubt as to her suitability to continue in this role.

As a result, the claimant sought to replace her but then withdrew his application. This triggered a dispute as to whether the claimant had litigation capacity.

The subject of the appeal concerned several case management decisions made by the Recorder at the 2025 trial, one of which was to hold a preliminary hearing to determine litigation capacity.

The Court of Appeal authority of Folks v Faizey (2006) provides a Litigation Friend can be appointed on the basis of one party’s evidence provided this shows the claimant lacks capacity and the proposal is bona fide.

The exception to this is where the defendant would suffer prejudice.

On this basis, the decision of the Recorder to hold a preliminary capacity hearing was both procedurally incorrect and unnecessary

This judgment emphasises questions as to litigation capacity should not normally be resolved at a stand alone hearing. 

Instead, the court can appoint a Litigation Friend on the claimant’s evidence alone.

Generally speaking, it is considered the defendant is not prejudiced by this because the need for approval in such cases provides certainty and finality of settlement.

In summary, where there is expert evidence to suggest the claimant lacks capacity, defendants can expect a Litigation Friend to be appointed at an early stage without them being heard unless real prejudice can be shown.

Examples of what might be regarded as real prejudice include:

• When the appointment would limit or prevent the running of a defence
• A clear conflict of interest i.e. the Litigation Friend stands to gain financially (see CPR 21.4)
• The Litigation Friend is clearly incapable of conducting their duties properly
• The appointment would delay the trial

Gemma Quinn is a Legal Director in the catastrophic and large loss injury team based in Manchester and lead of the Court of Protection Subject Matter Group.