Can a rule be implied into tribunal rules to provide for the appointment of a litigation friend? Yes, held the Employment Appeal Tribunal in Jhuti v Royal Mail.
When proceedings concern a vulnerable individual it is imperative to ensure they can fully participate in proceedings. A decision taken without regard to the need to safeguard and promote the welfare of a vulnerable person will not be in accordance with law. In a rare case where a litigation friend is essential, directions may be made for their involvement during those parts of the hearing where it is necessary under the tribunal's inherent power to manage its own procedure. Otherwise, there would be a breach of the common law duty of fairness if a litigant cannot make representations, give and test evidence or instruct a solicitor.
In that case, the Law Society intervened in the case for a mentally vulnerable claimant who needed to appoint a litigation friend. The Law Society argued that this not only met the common law duty of fairness and the right of access to the courts but it avoided placing the solicitor in conflict with the ethical duty to ensure a client has capacity.
Meanwhile (and coincidentally), in a case involving immigration tribunals in the Court of Appeal - AM (Afghanistan) v Secretary of State for the Home Department - the Court held an identical provision should be implied into the immigration rules despite no express provision existing for a litigation friend. Underhill LJ expressed, at para 48, a "strong provisional view" that a previous EAT ruling of his, holding the contrary, was incorrect.
Thanks to Karen Jackson of didlaw for preparing this case summary.