Tendring District Council v AB & Ors

The procedure for discontinuing a claim under Part 38 of the Civil Procedure Rules 1998 does not appear to extend to an appeal. An appellate court may instead order a person to cease to be a party where continued participation is undesirable.

For a protected party, desirability is assessed consistently with the overriding objective and the party’s best interests. Relevant matters include whether the appeal affects that person’s rights, the person’s position ascertained through the litigation friend, the usefulness of continued participation and exposure to disproportionate costs.

Historical evidence of incapacity must be sufficient to rebut the statutory presumption of capacity at the material time. Steps taken before current incapacity was satisfactorily established remain effective. Later steps taken before appointment of a litigation friend may be validated by the court.

Tendring District Council appealed from an Upper Tribunal decision dated 14 July 2022 concerning recovery of housing benefit overpayments from AB and his wife, CD. AB’s liability had been determined and was not under appeal. The continuing substantive dispute concerned recovery from CD.

After independent assessment established that AB lacked current litigation capacity, the Official Solicitor agreed to act as his litigation friend. Tendring sought permission to discontinue its appeal against AB under Part 38 of the Civil Procedure Rules 1998 and an order validating steps taken before the Official Solicitor’s appointment.

The court had to determine AB’s capacity and representation, the effect of earlier procedural steps, whether Part 38 governed partial discontinuance of an appeal, whether AB should instead cease to be a party, and whether costs protection or alternative dispute resolution was appropriate.

1. AB’s capacity and representation. The court accepted the independent assessment that AB could not understand, retain or weigh the information necessary to conduct the litigation. He was therefore a protected party for the purposes of Part 21 of the Civil Procedure Rules 1998. The Official Solicitor was appointed as his litigation friend upon the terms of Tendring’s undertaking concerning her costs.

2. Effect of earlier procedural steps. The assessment established AB’s present incapacity but did not provide a sound evidential basis for treating him as incapable at an earlier material time. Historical medical evidence alone did not adequately rebut the statutory presumption of capacity. AB was therefore not to be treated as a protected party before 14 May 2024, and all procedural steps taken up to that date remained effective. Steps taken between that date and the appointment of the Official Solicitor were given effect under rule 21.3(4).

3. Removal as a party. Part 38 of the Civil Procedure Rules 1998 concerns discontinuance of a claim and did not appear to govern an appeal. The appropriate course was a change of parties under Part 19. AB had no substantive role because his liability for the overpayment was no longer disputed. Continued participation exposed him and potentially his wife to substantial costs without materially affecting his rights. Giving particular weight to the Official Solicitor’s assessment of AB’s best interests, the court ordered that he cease to be a party.

4. Future conduct and ADR. AB’s removal was delayed until 18 October 2024 so that the Official Solicitor could provide further written submissions on the important social security issues, if so advised. Given the long history of the proceedings and the imminent substantive appeal, the court declined to order mediation but encouraged Tendring and CD to consider it.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 1248, appointed the Official Solicitor as AB’s litigation friend, preserved or validated earlier procedural steps, and ordered AB to cease to be a party. The substantive appeal concerning CD remained pending.

• Upper Tribunal: On 14 July 2022, held that the overpayment was recoverable from AB but not from CD because Tendring had not made a recovery decision against her. It also held that CD’s convictions were irrelevant. Tendring appealed.

• First-tier Tribunal: In 2018, after remittal, found both AB and CD liable for the overpayment and permitted an appeal concerning recoverability from CD.

• Upper Tribunal: In 2017, allowed AB’s first appeal and remitted the case to the First-tier Tribunal for rehearing.

• First-tier Tribunal: On 19 May 2015, upheld Tendring’s recovery decision.