The County Court Rules 1981

ORDER 10PERSONS UNDER DISABILITY

Person under disability to have next friend or guardian ad litem

1.—(1) Except where a minor brings an action in his own name under section 80 of the Act, a person under disability may not bring or make a claim in any proceedings except by his next friend.

(2) A person under disability may not defend or make a counterclaim in any proceedings except by his guardian ad litem.

(3) Where a person is authorised under Part VIII of the Mental Health Act 1959 (in this Order called “Part VIII”) to conduct legal proceedings in the name of a mental patient or on his behalf, that person shall be entitled to be the next friend or guardian ad litem, as the case may be, of the patient in any proceedings to which his authority extends, unless some other person is appointed by the court to be his next friend or guardian ad litem.

Next friend without appointment

2.  Before proceedings are commenced or a claim in any proceedings is made by a next friend on behalf of a person under disability, the next friend shall deliver at the court office—

(a)in a case to which rule 1(3) applies, an office copy, sealed with the official seal of the Court of Protection, of the order or other authorisation made or given under Part VIII by virtue of which he is authorised to conduct the proceedings on behalf of the patient;

(b)in any other case, a written undertaking, attested by a solicitor or by an officer of the court authorised to take affidavits, to be responsible for any costs which the person under disability may be ordered and fail to pay the person against whom the proceedings are brought or the claim is made.

Appointment of next friend by court

3.  Where proceedings are commenced or a claim is made by a person under disability without a next friend as required by rule 1, the court may—

(a)on application appoint as next friend any person who is authorised as mentioned in paragraph (a), or gives such an undertaking as is mentioned in paragraph (b), of rule 2, or

(b)order the proceedings to be struck out.

Service on person under disability

4.—(1) Where a defendant is a person under disability, the summons shall be served—

(a)in the case of a minor who is not also a mental patient, on one of his parents or his guardian or, if he has no parent or guardian, on the person with whom he resides or in whose care he is;

(b)in the case of a mental patient, on the person (if any) who is authorised under Part VIII to conduct in the name of the mental patient or on his behalf the proceedings in connection with which the summons is to be served or, if there is no person so authorised, on the person with whom he resides or in whose care he is,

and shall be served on the person to be served in the manner required by these rules with respect to the summons in question.

(2) Notwithstanding anything in paragraph (1), the court may order that any summons which has been, or is to be, served on the person under disability or on a person other than a person mentioned in that paragraph shall be deemed to be duly served on the person under disability.

Guardian ad litem without appointment

5.  Where in any action a person proposing to act as guardian ad litem of a defendant under disability delivers at the court office on his behalf an admission of or defence to the plaintiff's claim accompanied by—

(a)in a case to which rule 1(3) applies, such an office copy as is mentioned in rule 2(a);

(b)in any other case, a certificate made by the proposed guardian ad litem that he is a fit and proper person to act as guardian ad litem of the defendant and has no interest in the matters in question in the proceedings adverse to that of the defendant,

the person delivering the admission or defence shall be the guardian ad litem of the defendant and no order appointing him to act as such shall be necessary.

Appointment of guardian ad litem

6.—(1) Where a defendant under disability has no guardian ad litem acting for him by virtue of rule 5, the plaintiff shall, after the time for delivering an admission or defence has expired and before taking any further step in the proceedings, apply to the court for an order that a person named in the application or some other proper person be appointed guardian ad litem of the defendant.

(2) The application shall be supported by an affidavit showing that the person proposed by the plaintiff for appointment—

(a)is a fit and proper person to act as guardian ad litem of the defendant,

(b)has no interest in the matters in question in the proceedings adverse to that of the defendant, and

(c)consents to act.

(3) Not less than 3 days before the hearing of the application notice of the application, together with a copy of the supporting affidavit, shall be served on the person on whom the summons in the action was required to be served.

(4) On the hearing of the application the court may appoint the person proposed by the plaintiff or, if not satisfied that the person proposed is a proper person to be appointed, may appoint any other person willing to act or in default of any such person may appoint the registrar.

Appointment of guardian ad litem at hearing

7.  Where a defendant attends the hearing of an action and it appears that he is a minor who has no guardian ad litem, then—

(a)if the defendant names a person as his guardian ad litem who consents to act, that person shall be appointed guardian;

(b)if the defendant does not name a guardian ad litem, the court may appoint as guardian any person present who is willing to act or, in default of any such person, the court may appoint the registrar to act.

Application of preceding rules to liquidated sums and matters

8.—(1) Where a minor is sued for a liquidated sum, the court may, on the application of the plaintiff, direct that rule 6 or 7, as the case may be, shall not apply, and if the court directs that rule 6 shall not apply, no appointment of a guardian ad litem under rule 7 shall be necessary.

(2) Rules 5, 6 and 7 and this rule shall have effect in relation to a matter as they have effect in relation to an action, but with the substitution of a reference to an answer for any reference to a defence and with such other modifications as may be appropriate.

Guardian not liable for costs

9.  A guardian ad litem of a person under disability shall not be personally liable for any costs not occasioned by his personal negligence or misconduct.

Compromise etc. by person under disability

10.—(1) Where in any proceedings money is claimed by or on behalf of a person under disability, no settlement, compromise or payment and no acceptance of money paid into court, whenever entered into or made, shall so far as it relates to that person's claim be valid without the approval of the court.

(2) Where the sole object of an action in which a claim for money is made by or on behalf of a person under disability is to obtain the approval of the court to a settlement or compromise of the claim, the particulars of claim shall contain a brief statement of the cause of action together with a request for the approval of the settlement or compromise.

(3) Whatever the amount involved, the approval of the court may be given either by the judge or by the registrar and either in chambers or in open court.

Control of money recovered by person under disability

11.—(1) Where in any proceedings—

(a)money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability, or

(b)money paid into court is accepted by or on behalf of a person under disability,

then, unless the court otherwise directs, the money shall not be paid to the person under disability or to his next friend, guardian ad litem or his solicitor but shall be paid into or remain in court.

(2) The money and any interest thereon shall be invested, applied or otherwise dealt with as the court may from time to time direct.

(3) An application to the court as to the mode of dealing with the money and any interest thereon may be made by or on behalf of any person interested.

(4) Unless the court otherwise directs, the costs payable to his solicitor by any plaintiff in the proceedings shall be taxed as between solicitor and own client and no costs shall be payable to the plaintiff's solicitor except the amount allowed on taxation.

(5) On the taxation of a solicitor's bill to any plaintiff in accordance with paragraph (4), the registrar shall also tax any costs payable to that plaintiff in the proceedings and shall certify—

(a)the amount (if any) by which the amount allowed on the taxation of the solicitor's bill exceeds the amount allowed on the taxation of the costs payable to that plaintiff in the proceedings, and

(b)where necessary, the proportion of the amount of the excess payable by or out of any money belonging to any party to the proceedings who is a person under disability.

(6) Nothing in this rule shall prejudice a solicitor's lien for costs or apply to a case in which a minor sues as if he were of full age by virtue of section 80 of the Act.

Authority of next friend or guardian

12.  Subject to the provisions of these rules, any act which in the ordinary conduct of any proceedings is required or authorised by a provision of these rules to be done by a party to the proceedings shall or may, if the party is a person under disability, be done by his next friend or guardian ad litem.