TLI & Ors v City of Bradford MDC

Applications concerning protected parties should be approached principally by reference to the protective purpose of Civil Procedure Rules 1998 Part 21. Serious delay and poor conduct do not necessarily require retrospective validation to be refused where the procedural default can be separated from the substance of the litigation, the steps taken require no adverse correction, and the opposing party’s legitimate prejudice can be addressed through costs. The court may validate earlier steps under rule 21.3(4), applying criteria materially similar to those governing relief from sanctions. Costs consequences remain available for disproportionate conduct before settlement and for delay after acceptance of a settlement offer.

The claimants, protected parties, had issued claims in September 2020 and served them in April 2021 without filing Certificates of Suitability or amending the claim forms to record representation by the Official Solicitor. Applications were later made for appointment of the Official Solicitor as litigation friend and retrospective validation of steps taken without a litigation friend. Two identical applications were heard together.

The defendant opposed the applications, relying on serious unexplained delay, procedural default, disproportionate conduct and expense. It nevertheless maintained its acceptance of the claimants’ Part 36 offers and supported approval of the proposed settlement if the applications were granted.

1. The applications were granted. The Official Solicitor was appointed as litigation friend and the steps previously taken on behalf of the claimants were retrospectively validated under CPR 21.3(4).
2. The primary consideration under Part 21 is the protection and scrutiny owed by the court to children and protected parties. The court’s approach is therefore protective rather than principally disciplinary. The court accepted that the need for a cogent explanation engaged criteria closely resembling the three-stage approach in Denton.
3. The procedural failures were serious and inadequately explained. However, there was no evidence that the steps already taken should not be retrospectively approved. The delay and errors could be separated from the central subject matter and purpose of the litigation.
4. The defendant’s continued acceptance of the Part 36 offers was significant. The proposed settlement remained an economic decision concerning low-value claims, and the defendant confirmed that it would continue to support approval if the applications succeeded.
5. The defendant had suffered real expense and inconvenience. That prejudice did not require dismissal of the claims. Disproportionate conduct and delay before acceptance of the offers could be addressed on detailed assessment. Delay and neglect after acceptance would require the claimants’ solicitors to compensate the defendant and bear the relevant costs personally.
6. The solicitors’ undertaking to pay the defendant’s costs of the applications was a relevant factor, although an offer to pay costs could not ordinarily permit a defaulting party simply to buy its way out of procedural default.