You can conduct a claim of discrimination on behalf of a minor or a protected party, as a 'litigation friend'.
A protected party is defined as a party who “lacks capacity to conduct the proceedings independently”.
The role of a litigation friend is to conduct the proceedings fairly and competently on behalf of the minor or protected party. As such, as litigation friend, you take responsibility for the claim, but this can also come with some risk. For example, if you proceed with pursuing a claim on behalf of another person, in the County Court, as a litigation friend, and the claim is ultimately unsuccessful, you could be responsible for any legal costs incurred by the successful party.
A person who wishes to become a litigation friend, where the protected party or the minor is the claimant in the claim, must file a Certificate of Suitability with the County Court, stating that they can fairly and competently conduct proceedings on behalf of the person, and have no interest adverse to that of the minor or protected party.
What are the remedies available?
An award for injury to feelings will almost always be made if a person is successful with a claim of discrimination, if they are able to evidence that they have been caused hurt or distress by virtue of the discriminatory conduct. Any award for injury to feelings will be calculated based upon the ‘Vento scale’ which was established through case law and is periodically uplifted. Currently, the Vento scale, for claims presented on or after 6th April 2024, states that:
- An award of between £1,200 and £11,700 should be made in ‘less serious cases’
- An award of between £11,700 and £35,200 should be made in cases that ‘do not merit an award in the upper band’
- An award of between £35,200 and £58,700 should be made in ‘the most serious cases’
The most exceptional cases are capable of exceeding this amount. The Vento scale is merely guidance for a court or tribunal, and there is no cap imposed on such awards.
You can find out more about how to value the injury to feelings aspect of a discrimination claim, here.
What happens if a litigation friend settles the claim on the other person’s behalf, during the proceedings?
Where a claim is made, on behalf of a protected party or a minor, you cannot validly accept monies in the claim without approval of the Court. This means that any settlement reached will need to be approved by a County Court Judge. The Judge will ensure that the settlement is being made in the best interests of the claimant, and ensure that the settlement is suitable.
In most cases, the litigation friend will need to obtain legal advice on the reasonableness of the settlement from a solicitor or barrister and supply this to the court in support of their decision to settle.
If the award is deemed to be suitable, the court will likely give directions in respect of how the money should be dealt with, after considering the facts of the case. This will also be the case where the claim is successful at final hearing, and monies are awarded to the minor / protected party by the Judge.
In considering how the money shall be dealt with, the court will likely consider whether the minor / protected party is considered a protected beneficiary. A protected beneficiary will lack capacity to manage and control money recovered on their behalf (or for their benefit) in proceedings. It is important to note that a party could be considered a protected party and not a protected beneficiary.
Where money is recovered for the benefit of a minor who is not a protected beneficiary, if the court considers it appropriate, it may order that the money be paid directly to the litigation friend, to be placed into a bank account for the use of the minor. Alternatively, the money could be invested in the Court, to be paid to the minor when they reach 18 years of age.
Where money is recovered for the benefit of a protected party who is not considered a protected party, once the settlement is approved, it is likely that the monies will be paid directly to the protected party.
Where money is recovered for the benefit of a protected beneficiary, the court will ordinarily refer the matter to the Court of Protection.
In the event that you have further queries regarding a claim brought pursuant to the Equality Act 2010, please do not hesitate to contact our specialist discrimination team, on 0161 696 6170.
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