Claim to share of farm an 'incurable nullity'

A claim by three daughters to a half share of a farm lived in by their father, who died intestate, has been described as an 'incurable nullity' by the Court of Appeal.

None of the daughters had letters of administration at the time of the claim and instead they relied on Civil Procedure Rule 19.8, which allows claims to proceed in the absence of anyone representing an estate.

The court heard that Timothy Millburn was cohabiting at Willow Farm near Skegness with Susan Evans until 2006, the year before he died.

As a result of the relationship, which began in 1989, Millburn claimed a 50 per cent share of the farm and its riding school based on the principles of proprietary estoppel, but died before proceedings were issued. The three Millburn daughters issued proceedings in 2009 on the basis of their father's claim.

Delivering the leading judgment in Millburn-Snell and others v Evans [2011] EWCA Civ 577, Lord Justice Rimer rejected the claimants' argument that the civil procedure rules conferred a jurisdiction on the court to turn a nullity into valid proceedings.

Rimer LJ said that Ingall v Moran [1944] KB 160 established that a grant of administration did not retrospectively validate a writ. In the case Lord Justice Scott said the original writ was 'born dead, and could not be revived'.

Lord Justice Rimer said in this case the claimants faced a further difficulty in that, under the rule, a 'claim' referred to issued proceedings.

He said the claimants faced a problem in 'fitting the facts of the present case comfortably into the rule' since the intestate could not during his life have had any interest in the proceedings, because, by the time of their issue, he was dead.

Rimer LJ said that rule 19.8 had no role to play in correcting deficiencies in the way in which proceedings were instituted.

He said that 'on any basis' its function was not to 'cure nullities and give life to proceedings such as the present which were born dead and incapable of being revived.

'In ordinary circumstances there is no reason why anyone with a legitimate interest in bringing a claim on behalf of an intestate's estate should not first obtain a grant of administration and so clothe himself with a title to sue.'

Lord Justice Hooper agreed, as did Lord Neuberger, for his own reasons.

Emily Barker, litigation solicitor at Roythornes in Peterborough, acted for Evans. She said the ruling showed that the courts would not allow a 'fairly woolly' provision in the Civil Procedure Rules to subvert the existing principle that the claimants needed letters of administration.

'Getting a grant is a fairly straightforward process,' she said. 'This is a lesson to claimants to get their house in order.'

Barker said CPR 19.8 was limited in scope and could only be applied where proceedings had been issued rather than, in this case, where the claim was merely advanced in correspondence.

It is understood that, now that one of the daughters has letters of administration, the claimants are considering whether to lodge a fresh claim at the High Court.