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.


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; and
  • Apart from any objection based on cogent evidence on the suitability of the person to be appointed, an application for the appointment of a next friend or a guardian ad litem should not, as a general rule, concern the opposing party to the litigation.

Applying the legal principles to the factual circumstances of the present case, the court held that the defendant’s arguments challenging the suitability of Mr Leung were either unsupported by a legitimate basis or illusory. These arguments include that:

  1. The Rectification Summons falls outside what Mr Leung, as the next friend, had been authorised by the court to do on behalf of Yang – The court found that the order appointing Mr Leung to act as the next friend covers his capacity to pursue the Rectification Summons. There was no legitimate basis for this argument;
  2. The Rectification Summons had no merit whatsoever The court held that the defendant was not entitled to run this argument at this stage given that the relevant issue for the court is whether Mr Leung is suitable and has authority to act as a next friend (on the basis of whether such authority is beneficial to the person under disability). The court is not generally required to investigate the merits of the proposed claim or defence. As such the court found that there is also no legitimate basis for this argument; and
  3. The Rectification Summons puts the next friend in a position in which he has an unavoidable conflict of interest – Based on the facts of the case and the lack of evidence presented before the court, it was found that this argument is an illusory one.

As a result, the court granted an order confirming Mr Leung had the power and capacity to issue the Rectification Summons.


Wai’s case – next friend intending to act for the deceased person

It was not in dispute that Order 15, rule 7 of the Rules of the District Court applied to Wai’s case such that the cause of action survived and the proceedings would not abate by reason of the death of the plaintiff.

In respect of the issue concerning Ms Wai’s capacity to represent the plaintiff’s estate for the purpose of the proceedings, the court made clear that the only claimant in the proceedings before the death of the plaintiff had been the plaintiff himself (i.e. not Ms Wai). Ms Wai had been acting as next friend for the plaintiff due to the plaintiff’s mental incapacity. The court went on to hold that Ms Wai’s role as the plaintiff’s next friend ceased upon his death.  From that point onwards, she was no longer the next friend or a party to the proceedings.

As such, in order for Ms Wai to continue to represent the estate of the deceased plaintiff and for the defendant to properly discharge its liability, the court ordered that she be made a party to the plaintiff’s action and that proceedings be carried on as if the plaintiff had been substituted by Ms Wai since the death of the plaintiff.



These decisions serve as a useful reminder of the legal rules concerning next friends in legal proceedings. While the rules dealt with in these cases might seem merely to concern technical and procedural issues, they go to the very heart of how cases involving a next friend are brought in courts. It is essential that the right processes are followed before a next friend takes legal action in the courts, not least because this could avoid the legal costs and time required to resolve such procedural disputes.



Richard Norridge
Richard Norridge
+44 20 7466 2686
William Cheung
William Cheung
Senior Associate
+852 21014183