Part 23

Minors and Patients

Contents of this Part

Scope of this Part

Rule 23.1

Requirement of next friend in proceedings by or against minors or patients

Rule 23.2

Stage of proceedings at which next friend becomes necessary

Rule 23.3

Who may be a minor's next friend

Rule 23.4

Who may be a patient's next friend

Rule 23.5

Conditions for being a next friend without a court order

Rule 23.6

How a person becomes a next friend without a court order

Rule 23.7

How a person becomes a next friend by court order

Rule 23.8

Court's power to substitute next friend

Rule 23.9

Appointment of next friend by court order - supplementary

Rule 23.10

Procedure where appointment of next friend ceases

Rule 23.11

Compromise etc., on behalf of minor or patient

Rule 23.12

Control of money recovered by or on behalf of minor or patient

Rule 23.13

Proceedings under Compensation for Injuries Act

Rule 23.14

--------------------------------

Scope of this part

23.1 (1) This Part -

    1. contains special provisions which apply in proceedings involving minors and patients; and
    2. sets out how a person become a minor's or patient's next friend

(Rule 5.9 contains provisions about the service of documents on minors and patients)

(2) In this Part

(a) "minor" means a person under 18; and

(b) "patient" means a person who by reason of mental

disorder within the meaning of the Mental Health Act

1975 is incapable of managing and administering his

own affairs.

 

Requirement of next friend in proceedings by or against minors or patients

23.2 (1) A minor or patient must have a next friend to conduct

proceedings on his behalf.

    1. However the court may, on the application of a minor, make an order permitting the minor to conduct proceedings without a next friend.
    2. An application for an order under paragraph (2) may be made without notice.
    3. On considering an application under paragraph (3) the court must take into account any difficulties that might be caused to any other party in recovering costs if successful.
    4. Where -
    1. the court has made an order under paragraph (2); and
    2. it subsequently appears to the court that it is desirable for a next friend to conduct the proceedings on behalf of the minor,

the court may appoint a person to be the minor's next friend.

 

Stage of proceedings at which a next friend becomes necessary

23.3 (1) A minor or patient must have next friend in order to issue a

claim except where the court has made an order under rule

23.2(2).

    1. A person may not -
    1. make any application against a minor or patient before proceedings have started; or
    2. take any step in proceedings except -
    1. issuing and serving a claim form; or
    2. applying for the appointment of a next friend under rule 23.8,

until the minor or patient has a next friend.

    1. If a person becomes a patient during proceedings no party may take any step in the proceedings apart from applying to the court for the appointment of a next friend, until the patient has a next friend.
    2. Any step taken before a minor or patient has a next friend shall be of no effect unless the court otherwise orders.

 

Who may be a minor's next friend

23.4 (1) A minor's next friend may be a person appointed by

the court.

    1. A person who satisfies the conditions set out in rule 23.6(2) may act as a minor's next friend without a court order appointing him, unless -
    1. the court has already appointed a next friend; or
    2. the court makes or has made an order under rule 23.9 (court's power to change next friend and to prevent a person acting as a next friend).

 

Who may be a patient's next friend

23.5 (1) A patient's next friend may be a person appointed by

the court.

    1. Unless the court appoints some other person, a person authorised under Part VII of the Mental Health Act, 1975 to conduct legal proceedings in the name of the patient or on his behalf, is entitled to be the next friend of the patient in any proceedings to which his authority extends.
    2. If nobody has been appointed by the court or authorised under Part VII, a person who satisfies the conditions set out in rule 23.6(2) may be a patient's next friend without a court order.

 

Conditions for being a next friend without a court order

23.6 (1) Paragraph (2) specifies the conditions to be satisfied

for the purposes of -

(a) rule 23.4(2); (minor's next friend without

court order) or

(b) rule 23.5(3); (patient's next friend without

order if nobody is authorised under Part VII of the

Mental Health Act 1975).

    1. A person may act as a next friend if he -
    1. can fairly and competently conduct proceedings on behalf of the minor or patient; and
    2. has no interest adverse to that of the minor or patient; or
    3. (where the minor or patient is a claimant) undertakes to pay any costs which the minor or patient may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the minor or patient.

 

 

How a person becomes a next friend without court order

23.7 (1) If the court has not appointed a next friend, a person who wishes

to act as next friend must follow the procedure set out in this

rule.

    1. A person authorised under Part VII of the Mental Health Act 1975 must file an official copy of the order or other document which constitutes his authorisation to act
    2. Any other person must file a certificate that he satisfies the conditions specified in rule 23.6(2); and
    3. A person who is to act as a next friend for a claimant must file -
    1. the authorisation; or
    2. the certificate under paragraph (3),

at the time when the claim is made.

    1. A person who is to act as a next friend for a defendant must file -
    1. the authorisation; or
    2. the certificate under paragraph (3); and

at the time when he first takes a step in the proceedings on behalf of the defendant.

 

How a person becomes a next friend by court order

23.8 (1) The court may make an order appointing a next friend

with or without an application.

    1. An application for an order appointing a next friend may be made by -
    1. a person who wishes to be a next friend, or
    2. a party
    1. Where -
    1. a person makes a claim against a minor or patient; and
    2. the minor or patient has no next friend; and
    3. either -
    1. someone who is not entitled to be a next friend files a defence; or
    2. the claimant wishes to take some step in the proceedings,

the claimant must apply to the court for an order appointing a

next friend for the minor or patient.

    1. An application for an order appointing a next friend must be supported by evidence.
    2. The court may not appoint a next friend under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 23.6(2).

 

Court's power to substitute next friend

23.9 (1) The court may -

    1. direct that a person may not act as a next friend; or
    2. terminate a next friend's authority to act; or
    3. appoint a new next friend in substitution for an existing one.
    1. The court may make an order under paragraph (1) with or without an application.
    2. An application for an order under paragraph (1) must be supported by evidence.
    3. The court may not appoint a next friend under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 23.6(2).

 

Appointment of next friend by court order - supplementary

23.10 (1) An application for an order under rule 23.8 or 23.9

must be served on every person on whom, in

accordance with rule 5.8 (service on parent, guardian

etc.,) the claim form should have been served.

    1. An application for an order under rule 23.9 (change of next friend) must also be served on the person who is or who purports to act as next friend.
    2. On an application for an order under rule 23.8 or 23.9, the court may appoint the person proposed or any other person.

 

Cessation of appointment as next friend

23.11 (1) The appointment or a minor's next friend ceases when a

minor who is not a patient reaches the age of 18.

    1. When a party ceases to be a patient during the course of proceedings, the next friend's appointment continues until it is ended by court order.
    2. An application for an order under paragraph (2) may be made by -
    1. the former patient; or
    2. the next friend; or
    3. a party
    1. The child or patient in respect of whom the appointment to act has ceased must serve notice on the other parties -
    1. stating that the appointment of his next friend has ceased; and
    2. giving his address for service; and
    3. stating whether or not he chooses to carry on the proceedings.
    1. If he does not do so within 28 days after the appointment of the next friend terminates the court may, on application, strike out any claim or defence brought by him.
    2. The liability of a next friend for costs continues until -
    1. the minor or patient for whom he acted as next friend serves the notice referred to in paragraph (4)
    2. the next friend serves notice on the other parties that his appointment to act has ceased.

 

Compromise etc., by or on behalf of minor or patient

23.12 (1) Where money is claimed by or on behalf of a minor or

patient, no settlement, compromise or payment and no

acceptance of money paid into court shall be valid, so

far as it relates to that person's claim, without the

approval of the court.

    1. Where -
    1. before proceedings in which a claim is to be made by or on behalf of a minor or patient (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and
    2. the sole purpose of proceedings on that claim is to obtain the approval of the court to a settlement or compromise of the claim,

the claim may -

(i) include a request to the court for approval of the

settlement; and

(ii) be issued jointly by the claimant and defendant.

(Rule 61.x contains provisions about costs where money is to be paid to a minor or patient.)

 

Control of money recovered by or on behalf of a minor or patient

23.13 (1) Where in any proceedings -

    1. money is recovered by or on behalf of or for the benefit of a minor or patient; or
    2. money paid into court is accepted by or on behalf of a minor or patient

that money shall be dealt with in accordance with directions given by the court under this rule and not otherwise.

    1. Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.

 

Proceedings under Compensation for Injuries Act

23.14 (1) Where -

(a) a single sum of money is paid into court in

satisfaction of proceedings arising under the

Compensation for Injuries Act Chap. 8.05; and

(b) that sum is accepted,

the Court must apportion that sum between the different

causes of action either when

(i) giving directions under rule 23.13(2); or

(ii) when authorising its payment out of court.

(2) Where in such proceedings -

(a) a claim is made by more than one person; and

(b) a single sum of money is paid into court and accepted by such persons,

the court must apportion the payment between those persons.