Introduction

The case of Tendring District Council v AB & Ors [2024] EWCA Civ 1248 addresses critical issues surrounding the discontinuation of appeals against specific parties and the capacity of individuals to litigate. This judgment, delivered by the England and Wales Court of Appeal (Civil Division) on October 21, 2024, revolves around the recovery of overpaid housing benefits by Tendring District Council from AB and his wife, CD.

Parties Involved:

• Appellant: Tendring District Council
• Respondents: AB, Secretary of State for Work and Pensions (SSWP), and CD (AB's wife)

Key Issues:

• Recovery of overpaid housing benefits from AB and CD.
• Discontinuation of the appeal against AB while continuing against other respondents.
• Assessment of AB's capacity to litigate and appointment of a litigation friend.
• Application of the Civil Procedure Rules (CPR) regarding discontinuance and changes of parties.

Summary of the Judgment

The Court of Appeal upheld Tendring District Council's appeal against CD and partially addressed the discontinuation of the appeal against AB. The tribunal had previously determined that AB and CD were jointly liable for an overpayment of £67,421.79 in housing benefits. CD was convicted of dishonesty related offenses during the proceedings. AB, who suffered a stroke in 2007 leading to persistent neurological issues, lacked the capacity to effectively participate in litigation.

The court primarily focused on the application to discontinue the appeal against AB while maintaining the appeal against CD and the Secretary of State for Work and Pensions. The Court of Appeal ruled that AB should be removed as a party to the proceedings using CPR Part 19.3, deeming it not desirable for him to continue as a party due to his lack of capacity and the potential financial repercussions.

Furthermore, the court encouraged the parties to engage in Alternative Dispute Resolution (ADR), particularly mediation, to mitigate the protracted nature and significant costs of the case.

Analysis

Precedents Cited

The judgment referenced several key precedents that influenced the court’s decision:

• Masterman-Lister v Brutton & Jewell [2003] 1 WLR 1511: This case was pivotal in establishing that a court is unlikely to refuse to regularize previously taken steps if actions were taken in good faith without manifest disadvantage to the protected party.
• Glazi v Christoforou [2019] EWHC 670 (Ch): Cited to distinguish between a "claim" and a "remedy," clarifying that CPR Part 38 pertains to claims rather than appeals.

Legal Reasoning

The court meticulously analyzed the intersection of AB’s capacity to litigate and the procedural rules governing the discontinuation of appeals:

• Capacity Assessment: The court relied on an independent mental capacity assessment by Mr. Christian Webb, concluding that AB lacked the capacity to litigate. As a result, the Official Solicitor was appointed as his litigation friend under CPR Part 21.3(3).
• Application of CPR Rules:
  • CPR Part 19: This part governs changes of parties. Tendring's application to discontinue the appeal against AB was addressed under CPR 19.3, allowing the court to order that AB cease to be a party due to the lack of desirability for him to continue in the proceedings.
  • CPR Part 38: Though Tendring attempted to apply CPR 38 for discontinuance, the court determined that CPR 38 is not applicable to appeals as it pertains to claims. Therefore, CPR Part 19 was the appropriate framework for this discontinuation.
• Good Faith and Fairness: The court emphasized that Tendring acted in good faith by seeking to discontinue the appeal against AB, especially given the presumption of capacity and the subsequent confirmation of AB’s incapacity.

Impact

This judgment has significant implications for future cases involving:

• Discontinuation of Appeals: Clarifies the application of CPR Part 19 in appellate proceedings, distinguishing it from CPR Part 38 which applies to claims.
• Capacity to Litigate: Reinforces the necessity of assessing a party’s capacity and the role of the Official Solicitor in acting as a litigation friend under the Mental Capacity Act 2005.
• Procedural Fairness: Highlights the importance of balancing the appellant's rights with the protected party's welfare, especially regarding potential financial liabilities.
• Encouragement of ADR: The court's encouragement to engage in mediation underscores a trend towards resolving disputes outside of prolonged litigation to manage costs and resources efficiently.

Complex Concepts Simplified

Litigation Friend

A litigation friend is a person appointed to represent and make decisions on behalf of someone who lacks the capacity to conduct litigation themselves due to mental or physical impairments.

Protected Party

A protected party is an individual who, due to lack of capacity, is shielded from certain legal actions that could adversely affect them. This status ensures that their interests are adequately represented and protected in legal proceedings.

Civil Procedure Rules (CPR)

The CPR are the rules governing the conduct of civil litigation in England and Wales. Key parts relevant to this case include:

• Part 19: Deals with changes of parties, including the addition or removal of parties from litigation.
• Part 21: Addresses the role of litigation friends for protected parties.
• Part 38: Governs the discontinuance or withdrawal from civil claims and proceedings.

Alternative Dispute Resolution (ADR)

ADR refers to methods of resolving disputes outside of court, such as mediation or arbitration. It aims to provide a more efficient, cost-effective, and amicable resolution compared to traditional litigation.

Conclusion

The Tendring District Council v AB & Ors judgment serves as a pivotal reference for understanding the procedural nuances related to discontinuing appeals and managing the involvement of parties lacking the capacity to litigate. By affirming the appropriate application of CPR Part 19 over Part 38 in appellate contexts, the court provides clear guidance for similar future cases. Additionally, the focus on the welfare of protected parties and the promotion of ADR reflects a broader judicial commitment to fair and efficient resolution of disputes.

Legal practitioners must heed the delineations between different parts of the CPR when advising clients on the possibility of discontinuing appeals or altering party involvement. Furthermore, the case underscores the critical role of capacity assessments and the provision for litigation friends, ensuring that individuals who cannot represent themselves are adequately protected within the legal system.