Factual and Procedural Background
Tendring District Council ("Tendring") appealed a decision by the Upper Tribunal ("UT") dated 14 July 2022 concerning recovery of housing benefit overpayments. From April 2000 to February 2012, Tendring paid housing benefit to the Appellant in respect of a property jointly owned by the Appellant and his wife. Both were found not entitled to this benefit. In July 2012, Tendring decided there was an overpayment of £67,421.79 and notified the Appellant and his wife that they were jointly and severally liable for repayment. The Appellant and his wife disputed this. The wife was prosecuted and convicted of dishonesty offences related to the matter.
In 2007, the Appellant suffered a stroke causing persistent neurological symptoms. In 2013, deputyship was granted to the Appellant's wife and son by the Court of Protection.
The Appellant appealed Tendring's recovery decision in 2014. The First Tier Tribunal ("FTT") upheld the decision in 2015. The UT remitted the case for rehearing in 2017. The FTT found both the Appellant and his wife liable in 2018 and granted permission to appeal on recoverability from the wife.
The UT later ruled that Tendring could recover overpayment from the Appellant but not from the wife, as no decision to recover from her had been made. The wife's criminal convictions were deemed irrelevant to the UT proceedings.
Tendring appealed the UT decision to this court, with permission granted in July 2023. The appeal proceeded against three respondents: the Appellant, the Secretary of State for Work and Pensions ("SSWP"), and the Appellant's wife. The SSWP did not participate in the appeal.
In late 2023 and early 2024, Tendring sought permission to discontinue the appeal against the Appellant while continuing against the other respondents. The court considered the Appellant's capacity to litigate due to his stroke and appointed the Official Solicitor as litigation friend following an independent capacity assessment in May 2024.
At the hearing on 15 October 2024, Tendring applied for permission to rely on a modified Notice of Discontinuance and for retrospective regularisation of procedural steps taken before the Official Solicitor's appointment. The court addressed multiple issues including the Appellant's capacity, discontinuance application, retrospective regularisation, and costs protection.
Legal Issues Presented
- Whether the Appellant lacked capacity to litigate and the appropriateness of appointing the Official Solicitor as his litigation friend.
- Whether Tendring's application to discontinue the appeal against the Appellant should be permitted and the proper procedural mechanism for such discontinuance at the appellate level.
- Whether retrospective regularisation of procedural steps taken before the appointment of the litigation friend was required and appropriate under CPR 21.3(4).
- Whether it was desirable for the Appellant to cease to be a party to the proceedings pursuant to CPR 19.
- The implications of discontinuance and removal of the Appellant on the conduct of the substantive appeal, including the provision of legal argument.
- The court's approach to alternative dispute resolution in light of costs and the protracted history of the case.
Arguments of the Parties
Appellant's Litigation Friend (Official Solicitor)
- Confirmed willingness to act as litigation friend following the capacity assessment and undertaking by Tendring to cover related costs.
- Submitted that the Appellant lacks capacity to litigate and should be treated as a protected party under CPR 21.
- Argued that the Appellant should cease to be a party to the appeal as it is not in his best interests to continue, given the risk of costs and no substantive role in the appeal.
- Recommended against revisiting earlier decisions concerning the Appellant to avoid disproportionate costs and because there is no evidential basis to do so.
- Preferred discontinuance via CPR 19 (change of parties) over CPR 38, submitting that CPR 38 is inapplicable to appeals.
Appellant's Wife (Respondent)
- Objected to Tendring's application to discontinue the appeal against the Appellant.
- Expressed interest in maintaining the Appellant as a party and indicated a desire to revisit orders made against him.
- Appeared in person via CVP at the hearing.
Appellant (via Counsel for Tendring)
- Tendring accepted the Appellant's lack of capacity and the need for a litigation friend.
- Submitted that retrospective regularisation of procedural steps taken before the appointment of the litigation friend was justified under CPR 21.3(4), relying on precedent and good faith actions.
- Applied for permission to discontinue the appeal against the Appellant using a modified Notice of Discontinuance form.
- Expressed preference for discontinuance rather than stay of proceedings, emphasizing finality and proportionality.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Masterman-Lister v Brutton & Jewell [2003] 1 WLR 1511 |
Retrospective regularisation of procedural steps taken before appointment of litigation friend under CPR 21.3(4). |
The court accepted that if all parties acted in good faith and no manifest disadvantage occurred, retrospective regularisation should be granted to avoid injustice. |
| Glazi v Christoforou [2019] EWHC 670 (Ch) |
Distinction between "claim" and "remedy" under CPR 38; relevance to discontinuance procedures at appellate level. |
The court noted that CPR 38 generally governs claims, not appeals, and that discontinuance of an appeal does not fall straightforwardly within CPR 38 rules. |
Court's Reasoning and Analysis
The court accepted the independent assessor's report that the Appellant lacks capacity to litigate due to a serious stroke and is therefore a protected party under CPR 21, warranting appointment of the Official Solicitor as litigation friend. The court acknowledged Tendring's undertaking to cover costs related to the litigation friend.
Regarding retrospective regularisation of procedural steps taken before the appointment of the litigation friend, the court applied the principle from Masterman-Lister that such steps can be regularised if taken in good faith and without manifest disadvantage. Given Tendring's good faith reliance on a presumption of capacity and the absence of evidence of disadvantage, the court granted retrospective effect to steps taken before 14 May 2024.
The court considered the appropriate procedure for discontinuance of the appeal against the Appellant. It concluded that CPR 38, which governs claims, does not neatly apply to appeals, and that the proper mechanism is under CPR 19 for change of parties, allowing the court to order that the Appellant cease to be a party if it is not desirable for him to continue.
In assessing desirability, the court considered the Appellant's lack of capacity, the fact that he is already found liable with no appeal against that finding, the risk of substantial costs if he remains a party, and the Official Solicitor's view that it is not in his best interests to continue. The court agreed and ordered that the Appellant cease to be a party.
The court also addressed the future conduct of the appeal, noting the absence of legal representation for the Appellant following his removal and the wife's in-person appearance. To ensure the court is assisted by legal argument on important points of principle, the court delayed the Appellant's removal until 18 October 2024 to allow the Official Solicitor to provide further submissions if appropriate.
Finally, the court considered alternative dispute resolution ("ADR") due to the high and potentially disproportionate costs and lengthy history. While the wife expressed support for ADR, the court declined to order it, citing the need for finality and the imminent substantive appeal hearing, but encouraged the parties to consider ADR voluntarily.
Holding and Implications
The court GRANTED the application to appoint the Official Solicitor as litigation friend for the Appellant based on his lack of capacity.
The court GRANTED retrospective regularisation of all procedural steps taken before the appointment of the litigation friend pursuant to CPR 21.3(4), finding no manifest disadvantage and good faith conduct.
The court ORDERED that the Appellant cease to be a party to the appeal under CPR 19 as it was not desirable for him to continue, given his lack of capacity, the risk of costs, and absence of substantive involvement in the appeal.
The court DECLINED to order alternative dispute resolution but encouraged the parties to consider mediation due to the costs and protracted history.
The direct effect of this decision is the removal of the Appellant from the appeal proceedings, with the Official Solicitor acting as litigation friend until cessation and potentially providing further submissions. No new legal precedent was established; the court applied existing procedural rules and principles to ensure just and proportionate conduct of the appeal.