DG (by his appointee JG) v Bromley London Borough Council
[2024] UKUT 49 (AAC)
Tendring District Council v AB & Ors
21 October 2024
[2024] EWCA Civ 1248
Court of Appeal
A council overpaid housing benefits. One person who received the money (AB) had a stroke and can't understand the legal case. The court appointed someone to help AB but decided it would be better for AB to not be part of the case anymore as he already owes the money. His wife still fights the council. The court also suggested trying to resolve things outside of court.
Key Facts
- •Tendring District Council overpaid housing benefit to AB (£67,421.79) from 2000-2012.
- •AB and his wife, CD, jointly owned the property and were not entitled to the benefit.
- •CD was convicted of dishonesty related to the benefit overpayment.
- •AB suffered a stroke in 2007, resulting in a lack of capacity to litigate.
- •The Upper Tribunal (UT) ruled that Tendring could recover from AB but not CD.
- •Tendring appealed the UT decision, seeking to recover from both AB and CD.
- •The Court of Appeal considered AB's capacity to litigate and the appropriateness of discontinuing the appeal against him.
Legal Principles
Retrospective permission for steps taken before a litigation friend's appointment may be granted if everyone acted in good faith and there was no manifest disadvantage.
Masterman-Lister v Brutton & Jewell [2003] 1 WLR 1511
A protected party requires a litigation friend to conduct proceedings (CPR 21).
CPR 21
The court can order a person to cease being a party if it's not desirable (CPR 19.2(3)).
CPR 19.2(3)
The court considers the overriding objective of dealing with cases justly and at proportionate cost when determining whether to remove a party.
CPR overriding objective
CPR 38 on discontinuance of claims may not apply to appeals.
Glazi v Christoforou [2019] EWHC 670 (Ch)
Outcomes
The Official Solicitor was appointed as AB's litigation friend.
AB lacks capacity to litigate due to his stroke.
Steps taken before the mental capacity assessment were retrospectively regularised.
Tendring acted in good faith, and AB suffered no manifest disadvantage.
AB was removed as a party to the appeal.
It is not desirable for him to remain a party; his liability is uncontested and his continued participation risks unnecessary costs.
The appeal proceeds against CD only.
AB's liability is not in dispute, and removing him simplifies the proceedings.
The court encouraged ADR/mediation, but did not order it.
The protracted history of the case and the upcoming hearing make it unsuitable, but encourages the parties to consider it.