DO YOU NEED LETTERS OF ADMINISTRATION TO ISSUE ON BEHALF OF AN ESTATE?

A recent e-mail enquiry has led to my considering the issue of the right to issue proceedings on behalf of the estate of someone who died intestate.   The solicitor wanted to bring an action for personal injury on behalf of the estate in a case where the claimant had died for reasons not related to the accident. The limitation period was fast approaching.  Were letters of administration needed?

 THE ESSENTIAL POINTS

  • It is essential that letters of administration are taken out prior to the issue of proceedings.
  • The subsequent taking out of letters of administration cannot retrospectively validate an action.
  • Using the wrong title/phraseology in a fatal case can lead to the action being struck out.
  • There are times when taking out letters of administration are important to a fatal case.

THE NEED FOR LETTERS OF ADMINISTRATION TO HAVE AUTHORITY TO SUE

Any action brought on behalf of the estate of an intestate person requires letters of administration to be obtained before proceedings are issued.  The subsequent granting of letters of administration cannot validate the action.  An administrator’s right to bring proceedings runs from the date of letters of administration and proceedings issued before the date of the grant are invalid. This principle was recently reiterated by the Court of Appeal in Millburn-Snell –v- Evans [2011] EWCA Civ 577.  Lord Justice Rimer observed:

16. I regard it as clear law, at least since Ingall, that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity. That principle was recognised and applied by this court in Hilton v. Sutton Steam Laundry [1946] KB 65 (per Lord Greene MR, at 71) and Burns v. Campbell [1952] 1 KB 15 (per Denning LJ, at 17, and Hodson LJ, at 18). In Finnegan v. Cementation Co. Ltd [1953] 1 QB 688, Jenkins LJ said, at 700:

‘As to the law, so far as this court is concerned it seems to me to be settled by Ingall v. Moran and Hilton v. Sutton Steam Laundry and, I may add, by Burns v. Campbell, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends.’

AN ADMINISTRATOR BRINGING A FATAL ACCIDENT CLAIM

As the last passage shows this principle can have particularly perverse consequences for a claimant bringing a Fatal Accident Act action. Section 2(2) of the 1976 Act allows a dependant to bring an action if there is no executor or administrator or no action is brought within six months of the death by the administrator.

However if the action is phrased as being brought by the administrators and not the dependants then the consequences could be dire.  In Finnegan –v- Cementation Co Ltd [1953] 1 All ER 1130  the claimant widow had issued proceedings having taken out letters of administration in Ireland which were not valid in England. The writ claimed damages as “administratrix”. The defendant argued that the writ was not valid. The action was brought under the Fatal Accidents 1864. That Act had been amended to allow a dependant to bring an action if the executors or administrators did not bring an action. It was in similar terms to section 2(2) of the 1976 Act.  Despite this the Court of Appeal struck out the action. Jenkins LJ observed:-

“As to the law, so far as this court is concerned it seems to me to be settled by Ingall v MoranHilton v Sutton Steam Laundry and Burns v Campbell, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not, in fact, possess, is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends. It follows in the present case that, if the action was brought by this plaintiff in the representative capacity of administratrix of the estate of her deceased husband, and if she did not, in fact, possess that capacity, then her writ was a mere nullity and her claim must fail, because she omitted to pursue it in properly constituted proceedings within the prescribed period, and, the period having run, the court will not take any step to validate proceedings which were ab initio defective.”         

I can find nothing that indicates that this case has been overruled.  There is every possibility that it remains good law.

CAN THE PARTICULARS OF CLAIM BE AMENDED TO PUT MATTERS RIGHT?

This was one of the issues in the Millburn-Snell case. The Court observed:

… it is not easy to see how a claim which … is born dead and is a nullity can be given life by an amendment.”

 There was a detailed examination of the rules relating to amendment (The court rejected the argument that the rules allowing amendment could be used to turn a nullity into valid proceedings.

WHY DOES IT MATTER IF THERE IS NO ADMINISTRATOR IN A FATAL ACCIDENT CLAIM?

There are some fatal claims where there is a substantial claim on behalf of the estate. Particularly in industrial disease cases, cases where the deceased survived for some time after the accident or where there is a potential human rights claim.  Without letters of administration the claim will be confined to any claim the dependants have.  Further, as we have seen, if the claim is (wrongly) said to be on behalf of the administrator, when there is no administrator, the action will be struck out.

CAN PROCEEDINGS BE ISSUED AGAIN?

Here, again, there are potential problems. Section 2(3) of the Fatal Accidents Act 1976 states that “Not more than one action shall lie for and in respect of the same subject matter of complaint”

This means that it is not possible to issue more than one action in a fatal case. In Cachyia –v- Caluyi [2001] EWCA Civ 998 the Court of Appeal held the statute had to be considered in conjunction with the European Convention on Human Rights.  In that case earlier proceedings had been issued but not served and the court held that it was possible to interpret the word “action” as “served process”.   It may be able to persuade a court that “action” means validly served action (as opposed to a nullity) but this is far from certain.

I have been involved in a first instance case where a Circuit Judge refused to allow a second action to proceed.  In that case proceedings were served out of time and it was argued that they were therefore invalid and the claimants should be allowed to bring a second action.  However the judge held that once proceedings, of any kind, were served then Cachyia ceased to apply (the decision was not reported and is not binding, but illustrates the problems that can arise).

THE ESSENTIAL POINTS (AGAIN)

  • It is essential that letters of administration are taken out prior to the issue of proceedings.
  • The subsequent taking out of letters of administration cannot retrospectively validate an action.
  • Using the wrong title/phraseology in a fatal case can lead to the action being struck out.
  • There are times when taking out letters of administration are important to a fatal case.

RELEVANT CASES

RELEVANT POSTS

Not a previous post but  a link to an article I wrote about problems in fatal accident litigation “Fatal Accidents and Fatal Errors” where the claimant’s solicitors did not take out letters of administration

http://www.zenithchambers.co.uk/cms/document/GE___FATAL_ACCIDENTS_AND_FATAL_ERRORS.pdf

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