A law firm receives instructions from a Claimant to pursue a personal injury claim. Suddenly and unexpectedly, the firm is informed by a family member that their client has sadly passed away.
The next issue is that the limitation period is approaching, and the firm issues a protective claim form to preserve the Claimant’s claim whilst they scramble to secure an appropriate personal representative to continue with the claim.
However, as many firms do, a fatal error has occurred. Unfortunately, the firm did not have the appropriate instructions or an appropriate standing to issue the proceedings. What is worse is that, on occasion, when a personal representative was not identified, the firm issued as the Claimant, intending to amend the proceedings once a personal representative was identified and a retainer had been engaged.
These are, unfortunately, rather fatal errors that can end proceedings before they begin.
Millburn-Snell v Evans
A well-known authority on the point is Millburn-Snell & Others v Evans [2011] EWCA Civ 577, which demonstrates the point well.
The Claimants appealed a decision to strike out their claim against the Defendant. Before his death, the Claimant’s father was claiming against the Defendant but had not started legal proceedings. The father died intestate, and the Claimants filed a claim as his personal representatives, stating they had the right to do so. Five days before the trial, the Defendant asked to have the claim struck out because the Claimants did not have the legal authority to sue without letters of administration. The Claimants admitted this but asked the Court to allow the claim to continue under CPR 19.8(1). The Judge ruled the claim was invalid and could not be validated later by letters. He also said CPR 19.8(1) was not enough to make the claim suitable for trial.
The Claimants’ appeal to the Court of Appeal was dismissed. It was decided that a party incorrectly claiming to be an administrator cannot bring a claim because they lack the authority. CPR 19.8(1) did not apply, as it only guides proceedings when a death requires a trial. Usually, someone with a genuine interest in an estate must first obtain a grant of administration to sue. CPR 19(8)(1) does not allow this step to be skipped or replaced.
Practical approach in personal injury claims
When I was a litigator, I came across the issue quite often, and fortunately, I was in a position where limitation was not an issue. However, I could not make any progress until I had a retainer with an appropriate personal representative. It was straightforward when a valid will was in place, because the executives had automatic powers as personal representatives.
As with many clients, those without wills caused difficulties, especially when the client had no assets and no reason for a family member to apply for letters of administration. In some cases, the person who might be able to apply for letters of administration will not benefit from the damages sought, due to the intestacy rules.
I successfully recovered the costs of obtaining the Letters of Administration. Strictly speaking, it is a disbursement because it is a cost arising out of the litigation rather than the action. However, especially in the fixed cost regime, the need for the letters of administration is arguably a ‘particular feature of the dispute’, especially after MIB v Santiago [2023] EWCA Civ 838.
It is important that if a client passes away, you keep an eye on the revised limitation period and ensure your ducks are in order to avoid any issues.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
