Hong Kong Courts Clarify Legal Rules Surrounding Suitability And Capacity Of Next Friends

Next friends act on behalf of parties in legal proceedings who are not able to act themselves (for example, because of mental incapacity). In two recent decisions, the courts took the opportunity to reiterate the legal principles relating to the appointment and authority of a next friend and to make clear the capacity of a next friend.

Background

Issues relating to authority and/or capacity of next friends arose in Yang Foo Oi v Wai Wai Chen [2019] HKCFI 1312 (Yang's case) and Wai Ming Kui v Express Security Ltd [2019] HKDC 703 (Wai's case). The facts of the respective cases can be summarised as follows:

In Yang's case, the plaintiff, who has been in a state of incapacity for many years, filed an application, through her next friend, Mr Leung, to confirm Mr Leung's power and capacity to issue a summons seeking rectification of a deed of gift and a declaration executed by her (Rectification Summons); and In Wai's case, the plaintiff suffered severe head injuries in the course of his employment and was later declared a mentally incapacitated person. As a result, his youngest daughter, Ms Wai, was appointed as his next friend and guardian. During the course of proceedings commenced through Ms Wai, the plaintiff died intestate and therefore, Ms Wai applied for an order that she be appointed to represent the plaintiff's estate for the purpose of the proceedings. The questions for the courts were as follows:

In Yang's case, whether there was cogent evidence in relation to the suitability of Mr Leung to show that he should not be appointed; and In Wai's case, whether Ms Wai should be appointed to represent the estate of the plaintiff for the purposes of the present proceedings or alternatively, whether Ms Wai should be made a party to the action and the proceedings be carried on as if Ms Wai had been substituted for the plaintiff since the plaintiff's death. Yang's case - appointment and authority of next friend

The court helpfully summarised the well-established legal principles that are equally applicable to an application for the appointment of a next friend or guardian ad litem (i.e. someone usually appointed to represent children) and to an application by a next friend to confirm his/her authority in the conduct of the proceedings:

Dispute over the suitability of the next friend should be based on cogent evidence to avoid satellite litigation where all kinds of arguments, dressed up as going to the suitability of the candidate, are raised...