Understanding the Law
January 17, 2014
Next friend

When bringing an action in civil court there are two classes of persons who need a “next friend”. These are a minor and a patient.

Who is a minor?

CPR 2000 describes a minor as a person who has not attained the age of majority, that is, the age of eighteen. The designation is specific to civil law, because in criminal law criminal responsibility is at age of eight years and persons could be prosecuted for crimes as juveniles or adults.{{more}}

Who is a patient?

A patient, according to CPR 2000, “is a person who by reason of mental disorder within the meaning of the Mental Health Act….is incapable of managing his or her own affairs.” (p. 6)

Service of a claim

Under Part 5.10, a claim could be served on one of the minor’s parents or guardians. If there are no parents or guardians, then on the person with whom the minor lives or the person constituted to conduct proceedings on his or her behalf. For a patient, the person authorized to conduct proceedings on his or her behalf must be served.

Provision for next friend

Part 23 in CPR 2000 sets out the law as to how a person becomes a next friend of a minor and a patient in court. A parent or guardian could be constituted as a next friend. The law requires a person to act on behalf of the minor or patient, if that person could “fairly and competently conduct proceedings on behalf of the minor or patient.” The next friend should have no interest that is opposed to that of the minor or patient. A person could become a next friend without an order from the court, by filing an authorization under the relevant act or a certificate that the person satisfies the conditions above.

How a person becomes a next friend

The Court can appoint a next friend either on its own initiative or on the application of a person who wants to be the next friend. This application must be “supported by evidence on affidavit.” The Court must be satisfied that the person is competent and that he or she complies with the conditions set out in part 23. A minor can decide that he does not need a next friend and must make an application to this effect to the Court. On examination of the application, the Court could make an order permitting the minor to conduct proceedings without a next friend.

Substitution of a next friend

The Court has the power to bring to an end to the appointment of a next friend and to substitute with another next friend. The termination of services of a next friend could be done with or without an application. An application to have a next friend removed must be accompanied by affidavit. Any application to the Court regarding the appointment or termination of services of a next friend must be served on all concerned in the matter.

The next friend cannot make any settlement or compromise on behalf of the minor or patient out- side the court. Any money recovered for the benefit of the minor or patient must be done through the Court or with its approval.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: [email protected]