Legal basis and history
The state has always recognised the need for representation of an incapacitated person when a benevolent relative or friend cannot be found to act on his behalf. This function was undertaken on behalf of the Crown as parens patriae in various ways. Although the Official Solicitor's work is now largely acting as litigation friend (or in family proceedings, guardian ad litem or next friend) of last resort, the development of the functions of his office can be traced back through the 18th century.
The office of the Six Clerks
Prior to 1842 this office (which interestingly is mentioned in Pepys' Diary) operated arrangements to assist impoverished parties proceeding in Chancery suits "in forma pauperis", including those in this category who were lunatics or infants, and this function continued through various offices until the present system of legal funding became effective very many years later.
The office of the Solicitor to the Suitors' Fund
As part of the series of reforms of the Chancery Court in the mid 19th century, a number of offices were abolished, including the office of the Six Clerk which went in 1842. However, John Johnson, who was appointed Solicitor to the Suitors' Fund (originally formed in the 18th Century, primarily to supervise the management the funds of suitors held by the Chancery Court) then also, as a matter of practice, came to be appointed by the Lord Chancellor to represent "paupers, infants and lunatics" under the Court of Chancery Act 1842, where there was no "natural protector". Thus the duties of the Six Clerk came to be assumed by the office of the Solicitor to the Suitors' Fund.
The Official Solicitor to the High Court of Chancery in England
By an order dated 4 December 1871 Lord Chancellor Hatherley (on the retirement of John Johnson) appointed Henry Pemberton to be "The Official Solicitor to the High Court of Chancery in England" and directed him to perform the duties formerly carried out by the Solicitor to the Suitors' Fund, although by 1875 the original duties of the office of Solicitor to the Suitors' Fund had largely disappeared.
The Official Solicitor to the Supreme Court of Judicature
The present office was created by an Order of the Lord Chancellor made on the 6 November 1875 with the approval of the Presidents of the newly constituted divisions of the High Court, and of the Treasury, under the power given to him by Section 84 of the Supreme Court of Judicature Act 1873 to appoint officers to serve the Supreme Court generally. Lord Chancellor Cairns by an order dated 7 February 1876 then appointed Henry Pemberton to be The Official Solicitor to the Supreme Court of Judicature.
The foundation of the present office
It was not until 1981 that the office became a statutory office and renamed the Official Solicitor to the Supreme Court. The Official Solicitor is now an officer of the Supreme Court appointed by the Lord Chancellor under s.90 of the Supreme Court Act 1981.
Merger of the Official Solicitor and Public Trustee
The offices of the Official Solicitor to the Supreme Court and the Public Trustee are now housed in one office building, but they continue to have separate corporate functions.
Merger of the Court Funds Office with the offices of the Official Solicitor and Public Trustee
On 1 April 2007 the Official Solicitor and Public Trustee merged with the Court Funds Office to become the Offices of Court Funds, Official Solicitor and Public Trustee. This new organisation is an associated office of the Ministry of Justice.