Building blocks

An executor’s title to sue derives from the will and not from the grant of probate and an executor can validly sue before obtaining a grant. By contrast, an administrator derives his title solely from the grant of letters of administration. It has been suggested, however, that rule 19.8(1) ?of the Civil Procedure Rules 1998 (CPR) might enable a claim to be brought in right of an intestate notwithstanding the absence of a ?grant of administration.

The rule provides that:

Where a person who had an interest in a claim has died and that person has no personal representative the court ?may order—

 

 

the claim to proceed in the absence of a person representing the estate of the deceased; or

 

 

a person to be appointed to represent the estate of the deceased.

 

 

There has been uncertainty over the scope of this provision. The issue arose in the case of Millburn-Snell v Evans, in which the Court of Appeal confirmed that the children of an intestate who had brought a claim before obtaining a grant could not rely on rule 19.8 to overcome their lack of title to sue.

Letter of intent

The claimants were the three daughters of the late Timothy Millburn, who had died intestate. The defendant was the owner of a property known as Willow Farm and the former business partner of Mr Millburn. It was asserted by the claimants that their father had acquired a beneficial interest in Willow Farm by way of proprietary estoppel.

During his lifetime, Mr Millburn’s solicitors had been asserting his claim in correspondence with the defendant’s solicitors. Following his death, they continued the correspondence, stating that they were “instructed to act on behalf of the personal representatives of Mr Millburn deceased”.

In their letter of claim, they gave ?the names of the three intending claimants and said that they were ?“the personal representatives” of Mr Millburn. Proceedings were issued and paragraph 1 of the particulars of claim asserted that the claimants were “the personal representatives” of Mr Millburn and that they were “entitled to bring this claim on behalf of his estate”. The pleading bore statements of truth signed by each of the claimants.

A defence was served. It expressly made no admissions as to the contents of paragraph 1 of the particulars of claim, thereby putting in issue the claimants’ title to sue. Nevertheless, the claimants’ disclosure did not include a grant of letters of administration.

Five days before the trial was to begin, the defendant’s solicitors wrote to the claimants’ solicitors, referring to their client’s non-admission of the claimants’ title to sue and asking for production of a certified copy of the grant of representation. By way of response, the claimants’ solicitors confirmed that no grant had been taken out but noted that the “right of the claimants to act as personal representatives has never been challenged by you”. The letter went on to state that the claimants were the only children of the deceased and described them as “the only persons entitled to make the claim”. It concluded by stating that if the claim were successful, the court could “direct that probate [sic] should be applied for”.

This prompted the defendant to make an application that the claim should be struck out on the ground that the claimants purported to sue as personal representatives yet had neither sought nor obtained a grant of letters ?of administration.

Struck out

The application came before His Honour Judge Langan QC on the Friday before the trial was due to start on the Monday. He held that, subject only to any help that the claimants might derive from the CPR, there was no doubt that the claim should be struck out as a nullity. Moreover, it would not assist the claimants to obtain a grant of letters of administration subsequent to the issue of the claim because, unlike a grant of probate, letters of administration would not relate back so as to validate the claim. He referred, in particular, to the case of Ingall v Moran [1944] KB 160.

The arguments in relation to the CPR turned on the scope of rule 19.8(1). It was said on behalf of the claimants that Mr Millburn was “a person who had an interest in a claim”, not least because before his death his solicitors had been asserting that claim on his behalf. The defendant sought to confine the scope of the word ‘claim’ to one that was on foot in the sense that proceedings had been issued before the death of the claimant.

It was said that it would be wrong to give the ambiguous wording of the rule a construction that would overturn the principles exemplified by cases such as Ingall. The judge found the matter far from easy and noted that whichever way he were to decide it, he would readily give permission to appeal. In the end, he resolved in favour of the defendant and struck out the claim.

On the issue of costs, the judge ordered the claimants to pay the defendant’s costs of the application and half of the balance of her costs of the claim. He was influenced in the latter decision by the fact that strike-out applications should be made promptly rather than on the eve of trial.

Dead or alive

It was held by the Court of Appeal (Lord Neuberger of Abbotsbury MR, and Hooper and Rimer LJJ):

1. It was agreed that Judge Langan was correct that, subject only to any help that might be derived from rule 19.8(1), the claim was a nullity that must be struck out and could not be retrospectively validated by a grant of letters of administration. The latter point was well illustrated by the decision in Ingall. The court also considered comments made in Haq v Singh [2001] EWCA Civ. 957 on the effect of rule 17.4, which allows amendment of a statement of case after the expiry of a limitation period where the amendment is to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired. In Haq, Arden LJ had expressed the obiter view that the effect of rule 17.4 was to remove the effect of Ingall. Rimer LJ (with whom Lord Neuberger MR and Hooper LJ agreed) questioned the correctness of that assessment. He could not see how a claim that was born dead could be given life by an amendment.

2. In relation to rule 19.8(1), the claimants accepted that, had they obtained a grant before the hearing of the defendant’s application, their claim would still have been struck out because the rule would have been inapplicable (it being limited to circumstances where there is no relevant ‘personal representative’).
3. In relation to the scope of the word ‘claim’ in rule 19.8(1), the claimants conceded that the word referred to a claim the subject of current proceedings. It was submitted on their behalf, however, that Mr Millburn had an interest in a cause of action that, following his death, became the subject of the claimants’ claim and that this interest was a sufficient ‘interest in a claim’ within the meaning of the rule. In support of this submission, it was noted that the words ‘a person who had an interest in a claim’ were deliberately wider than, say, the words ‘a person who was a party to the proceedings’.

After considering the decision in Lean v Alston [1947] KB 467, which considered the predecessor provisions of rule 19.8(1) in the former Rules of the Supreme Court, Rimer LJ accepted that rule 19.8(1) did not refer exclusively to a deceased person who was formerly a party. Nevertheless, he had difficulty in seeing how this helped the claimants. In particular, the court was constrained by Ingall, which confirmed that the claim was a nullity. The logic of the claimants’ case was that rule 19.8(1) conferred a jurisdiction to turn such a nullity into valid proceedings. He could not accept that conclusion. Rule 19.8(1) does not have any role to play in correcting deficiencies in the manner in which proceedings have been instituted: it is concerned exclusively with giving directions in validly instituted proceedings when a relevant death requires such directions. What the rule cannot do is breathe life into proceedings that were born dead.

4. On the issue of costs, Rimer LJ found the defendant’s evidence compelling and concluded that the judge was in error in criticising the defendant for not making the application earlier. In place of the original costs order, the Court of Appeal ordered that the claimants pay all of the defendant’s costs of the claim so far as they had been wasted. The view was expressed, however, that validly constituted proceedings could be issued very quickly and would be ready for trial almost straight away. In those circumstances, there was no point duplicating costs by re-taking steps that had already been taken. The claimants were given two months within which to issue valid proceedings, in default of which they would have to pay the defendant’s costs of the present claim. n

 

Joseph Goldsmith is a barrister at 5 Stone Buildings

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