Tendring District Council v Christopher Alfred Ling & Anor

Where a person is sought to be added after expiry of the limitation period, the ordinary joinder power in CPR r 19.2(2) is displaced by r 19.2(1), and r 19.6 applies. Addition is necessary only if the appeal cannot properly be carried on against the existing party without the new party. That requirement may be met in unusual circumstances where the proposed party has been the real subject of the dispute, participated fully as a litigation friend, must be able to argue the merits, and should be bound by the result for enforcement. Late joinder is not precluded where the proposed party has suffered no prejudice and refusal would undermine the overriding objective.

Tendring District Council sought to join Janet Ling as a respondent to its appeal from the Upper Tribunal Appeals Chamber. Housing benefit had been overpaid to Christopher Ling. On the second round of proceedings, the First-tier Tribunal found both spouses liable to repay the money. The Upper Tribunal dismissed Christopher Ling’s appeal but allowed Janet Ling’s appeal against joint liability.

Tendring obtained permission to appeal and sought Janet Ling’s joinder so that she could argue the substantive appeal and be bound by any decision. The application engaged the post-limitation change-of-parties provisions in CPR r 19.6. The central issue was whether the appeal could properly proceed against Christopher Ling alone, or whether Janet Ling’s addition was necessary.

1. Disposition. Janet Ling was joined as a respondent to the appeal. The costs of the joinder application were made costs in the appeal.
2. Applicable procedural rule. Although Tendring relied on CPR r 19.2(2) and the desirability of resolving all matters in dispute, that was not the applicable test. Rule 19.2(1) disapplied r 19.2(2) where the case fell within the post-limitation provisions. The cross-reference to r 19.5 was an error and should have referred to r 19.6. The six-year limitation period under the Limitation Act 1980, s 9, meant that any claim against Janet Ling had become statute-barred by 17 July 2018.
3. Necessity. Under r 19.6(2)(b) and r 19.6(3)(b), addition was necessary only if the appeal could not properly be carried on against Christopher Ling unless Janet Ling was added. The relevant limitation period had been current when proceedings were started against Christopher Ling.
4. Application to the facts. The unusual circumstances satisfied the necessity requirement. Janet Ling had been the real party in issue throughout the tribunal proceedings. She had made detailed submissions as Christopher Ling’s litigation friend, and those submissions had succeeded before the Upper Tribunal. The appeal concerned her alleged joint liability, and joinder was required both to allow her to argue the case fully and to ensure that she would be bound by the result for enforcement purposes. Her lack of formal party status had caused no prejudice, whereas allowing her to contest liability without adverse consequences would be contrary to the overriding objective.
5. Ancillary guidance. Since Janet Ling was now a separate party, it might be inappropriate for her to continue as Christopher Ling’s litigation friend because of a potential conflict of interest. The judge urged her to co-operate with the Official Solicitor in view of Christopher Ling’s potential status as a protected party.

• Court of Appeal (Civil Division): granted Tendring District Council’s application to join Janet Ling as a respondent. The substantive appeal was to be heard separately.
• Upper Tribunal Appeals Chamber: dismissed Christopher Ling’s appeal but allowed Janet Ling’s appeal in relation to her alleged joint liability.
• First-tier Tribunal: found Christopher and Janet Ling liable to repay the overpaid housing benefit.