When a claimant dies during personal injury proceedings

15 Jul 2026|Practice Notes|Add your comment

A practical guide to substitution, probate, costs, and QOCS following a claimant's death during personal injury litigation

The death of a claimant during personal injury proceedings marks a pivotal shift in the procedural consequences and the progression of the claim. Historically, the common law regarded actions as ceasing upon death. However, this led to unfair outcomes such as wrongdoers escaping from liability. Due to the Law Reform (Miscellaneous provisions) Act 1934 (Law Reform) and the Fatal Accidents Acts 1976, this position has altered significantly. Specifically, in accordance with the Law Reform, where either party dies, the existing cause of action survives against or for the benefit of the estate of the deceased (s 1(4)).

What to do if your client (the claimant) dies midway through court proceedings?

If the matter is issued, it is vital that the death of the claimant is communicated to the Court so the proceedings are stayed until you have had an opportunity to make appropriate contact with the executors of the claimant’s estate, distinguish whether probate has been applied and/or granted and obtain the executors' instructions regarding the progression of the claim.

If probate has not been applied for, as the legal representative you may be required to obtain the grant of probate to advance the claim.

Part three of the Civil Procedure Rules (CPR) grants the court extensive case management authority. When probate has been granted and in the event the executors wish to continue, they will need to be substituted for the deceased within the proceedings. To achieve this, an N244 Application notice must be filed with the appropriate court fee and the Grant of probate advising the Court of the executor’s interest in the matter under Practice Direction 19A & Part 19 of the Civil Procedure Rules.

The executors must be advised of the prospects of success in light of the claimant’s death. Consideration must be given to establishing liability in the deceased claimant’s favour due to the lack of cross-examination. It is therefore always essential to obtain early signed witness statements from the claimant so that the accident details are accurately captured.

Once the executors have agreed to proceed, the claim will proceed as per the Court’s direction with the executor, on behalf of the claimant’s estate, taking the claimant’s place.

In the instance the claim is not issued, a similar procedure is followed. The claimant’s solicitor must notify the defendants or insurers of the death and the claim is continued in that capacity.

In accordance with the Civil Procedure Rules 1998, in any proceedings against the estate:

“(a)the claimant shall, during the period of validity for service of the claim form, apply to the court for an order appointing a person to represent the deceased’s estate for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;”.

Limitation must be adhered to as general practice. The limitation period ends 3 years from the date of the deceased claimant’s death.

Recoverable Costs

If the claimant has died, standard costs are recoverable from the defendant from the date of death if the claim is successful.

When corresponding with the defendant, legal representatives can assert that Fixed Costs cease to apply on the death of the claimant, as per Hilton v Proudfoot and Another, Middlesbrough County Court, Claim No E03 YX 717, 15 April 2019.

Moreover, Paragraph 4.5 of the RTA portal provides:

“This Protocol does not apply to a claim—

(1) in respect of a breach of duty owed to a road user by a person who is not a road user;

(2) made to the MIB pursuant to the Untraced Drivers’ Agreement 2003 or any subsequent or supplementary Untraced Drivers’ Agreements;

(3) where the claimant or defendant acts as personal representative of a deceased person;”.

Therefore, it would be prudent to raise this point with the defendant when this unfortunate situation arises, as the associated costs increase may be significantly higher than fixed costs. In addition, the legal representative’s costs and disbursements involved in obtaining probate are also recoverable from the defendant.

Costs Consequences

Qualified One-Way Costs Shifting (QOCS) applies to personal injury claims brought by the estate.

Since April 2013, the qualified one-way costs shifting (QOCS) regime has applied to proceedings that include claims for damages arising from death or personal injury. In contrast, the usual rules on costs—typically that the unsuccessful party pays the successful party’s costs, subject to the court’s discretion to order otherwise remain applicable to all other types of proceedings.

Cases which the QOCS regime would apply:

If the claimant is successful within their claim or any aspect of the same, they may be able to recover costs (if the court exercises its discretion under CPR 44.2 to award them costs) and enforce costs orders obtained.
In the unfortunate event, that the claimant in unsuccessful in bringing their claim or any aspect of it, costs orders against them (again, made in the Court’s discretion) cannot be enforced except in the extent of orders for or agreements to pay or settle a claim for, damages, costs and interest made in favour of the claimant.

The claimant’s death does not remove QOCS protection by itself. What matters is whether the ongoing proceedings still qualify as a claim for personal injury or death. If they do, QOCS protection usually continues. The fact of death does not itself remove the claim from QOCS protection, the regime is defined by the nature of the claim, not the status of the claimant.

In Anne Morgan (on behalf of herself and of the estate of Mr Christopher John Morgan) v Dr Chongtham Singh (unreported), the County Court at Sheffield, in the context of a medical negligence claim which, following the claimant’s death, was pursued by the claimant’s widow, it was held that the widow should be entitled to QOCS protection (though her husband had not been, owing to his pre-commencement funding arrangement). HHJ Robinson held that QOCS applies to claimants, not sets of proceedings. As Mrs Morgan had not entered into a pre-commencement funding arrangement, she was entitled to QOCS protection.

Legal News desk contact: editorial@solicitorsjournal.com|

What to do if your client (the claimant) dies midway through court proceedings?

If probate has not been applied for, as the legal representative you may be required to obtain the grant of probate to advance the claim.

Once the executors have agreed to proceed, the claim will proceed as per the Court’s direction with the executor, on behalf of the claimant’s estate, taking the claimant’s place.

In the instance the claim is not issued, a similar procedure is followed. The claimant’s solicitor must notify the defendants or insurers of the death and the claim is continued in that capacity.

In accordance with the Civil Procedure Rules 1998, in any proceedings against the estate:

When a claimant dies during personal injury proceedings

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