In this information sheet, we explain what a litigation tutor is, who it is used for and who is liable for any legal fees.
Who/What is a Litigation Tutor?
A litigation ‘tutor’ is a person appointed by the Court to represent a person under legal incapacity. A person under legal incapacity is not permitted to commence or continue legal proceedings.
A litigation tutor can be appointed on behalf of the following persons under legal incapacity:
· Minors (ie persons under the age of 18);
· Certain mental health patients;
· Persons subject to guardianship; and
· Incommunicate persons (ie people unable to receive and/or express their wishes).
A tutor must be legally represented when acting on behalf of a person under legal incapacity.
Who Can Become a Litigation Tutor?
It should go without saying, but a tutor cannot themselves be legally incapacitated.
A tutor must not have an interest in the legal dispute which is contrary to the interests of the person under legal incapacity. The tutor’s solicitor is required to sign and file a certificate to this effect with the court. Notwithstanding, a person is not barred from acting as a tutor simply because they are also a party to the same court proceedings.
Persons involved with the administration of courts (eg judges and registrars) cannot become tutors.
If there is no relative or suitable friend willing to be tutor for the person under legal incapacity, an independent solicitor can be appointed. In these circumstances, it is generally appropriate for the tutor (a solicitor) not to be legally represented.
A tutor must consent to their appointment.
What is the Role of a Litigation Tutor?
A tutor can do anything on the incapable person’s behalf that a party is ordinarily authorised or required to do.
Once a minor attains the age of 18, their tutor must cease acting from this point.
Is a Litigation Tutor Liable for Payment of the Incapable Person’s Legal Fees?
A tutor is entitled to be indemnified (ie reimbursed) by the incapable person for any legal costs that have been reasonably and proportionately incurred.
A tutor who has commenced proceedings on behalf of an incapable person is liable to pay any costs orders made in favour of a defendant. Whereas, a tutor is ordinarily not liable to pay costs associated with unsuccessfully defending an action.
Compromises/Settlements Reached on Behalf of Incapable Persons – What is the Role of the Court?
The court cannot order an incapable person to reach a compromise or settlement against the opinion of their tutor.
Where a compromise or settlement is reached by or on behalf of an incapable person, the Court is required to approve the agreed terms (unless the action is based on certain work, health and safety legislation).
A compromise or settlement that is reached on behalf of an incapable person should not be inclusive of legal fees. This is necessary to avoid a potential conflict arising as between the incapable person and their solicitors. Legal fees are treated as a separate issue, to be determined either by agreement or assessment.
If you require a solicitor to act on behalf of a person under legal incapacity, please call our offices on (02) 4050 0330 or book an appointment online.
