THE DEAD CAN’T SUE: AN IMPORTANT REMINDER

In Kimathi & Ors -v- The Foreign & Commonwealth Office [2016] EWHC 3005 (QB) Mr Justice Stewart reviewed the principles in relation to bringing an action on behalf of a deceased party.  It is an important reminder of some very basic principles. An action is brought by the deceased’s estate not in the name of the deceased The right to bring an action does not vest in administrators until they obtain the grant.  Similarly foreign administrators have no right to bring an action until the claim in registered in England (& Wales).

KEY POINTS

  • The issue of proceedings in a deceased person’s name is a nullity.
  • Administrators cannot issue proceedings until they obtain letters of administration.
  • Foreign administrators cannot issue proceedings until their letters of administration prior to the re-sealing of the Grant in England.
  • The Court has no discretion available to it to correct the nullity.
  • The claim brought on behalf of the deceased person was struck out.

THE CASE

The claimants are bringing a group action against the Foreign & Commonwealth office. In relation to one claimant. There is a group action in process with the (deceased) claimant being one of the parties named in the Group Litigation Order. The defendant applied to strike out the claim brought on behalf of one of the claimants on the grounds he was dead and the claim was a nullity.

THE CLAIMANT’S PLEADED CASE

  1. n the Individual Particulars of Claim the following appears:
“1. This claim is brought pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased Claimant, Ndimitu Wagachima.
2. The Administrators of the Estate, and by whom the claim is brought, are Esther Nyambura Maina, Joseph Waigwa Wagachima and Duncan Maina Karawathe. A Limited Grant of Letters of Administration ad litem was issued in favour of the Administrators at the High Court of Kenya through the Registry at Nairobi on 28 January 2015.
3. The deceased Claimant died on 23 August 2013. He died of Pneumonia. He is survived by close family members who are beneficiaries of his Estate.”
In the Individual Reply, paragraph 4, it is stated:
“As to paragraphs 2, 3 and 4 [of the Re-amended Individual Defence] the basis of the claim is adequately pleaded and the Defendant knows the case it has to meet. The claim was brought on behalf of the deceased’s estate and the Claimants are and remain anxious to avoid unnecessary and disproportionate expense in meeting technical requirements until such time as it is necessary to do so, save that matters are in hand and are being dealt with as expeditiously as is reasonable in the circumstances. If there is any particular reason why the Defendants consider it imperative to take such action at this point in time, would they please specify.”

THE DEFENDANT’S ARGUMENTS

  1. The Defendant contends:
a) TC11 died on 23 August 2013, nearly seven months before his name was entered onto the Group Register on 14 March 2014, and the claim purportedly brought by him is a nullity.
b) The pleaded basis upon which TC11’s claim is alleged to be valid (i.e. that it was an estate claim) is incorrect both in fact and in law – the claim was brought in the name of TC11 (not that of his estate); but in any event, no estate claim could have been brought in England until the Kenyan High Court’s letters of administration were re-sealed by the Family Division of the High Court on 22 March 2016.

THE LEGAL PRINCIPLES

The judge set out the relevant principles.

The Established Law
  1. The first principle is that a claim cannot be brought in the name of a deceased person. There is authority for this, which dates from (at least) the early 19th century[1]. A more recent statement is that of Morritt LJ (with whom Simon Brown and Waite LJJ agreed) in NP Engineering and Security Products Limited, Official Receiver v Pafundo[2] where the Court of Appeal said (page 204a)
“It is well established that proceedings are only a nullity if the plaintiff is dead or non-existent in the sense of being a body corporate that has been dissolved at the time when the proceedings are commenced.”
  1. The second principle is that an administrator cannot sue under s.1 of the Law Reform (Miscellaneous Provisions) Act 1934 unless a grant of letters of administration has been obtained. In Ingall v Moran[3] Scott LJ said (page 164):
“The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant’s tort. That chose in action was his. To it the common law maxim “Actio personalis moritur cum persona” would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then – and not before – it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son’s surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 – an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff’s failure to produce them the action would, on the defendant’s application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action – just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim… The old writ was, in truth, incurably a nullity. It was born dead and could not be revived.”
(See also Luxmoore LJ at page 167 – 168 and Goddard LJ at page 170).
This principle has been more recently reiterated in Millburn-Snell v Evans[4].
  1. Thirdly, in respect of a Grant of Administration in another jurisdiction, proceedings cannot be validly instituted prior to the re-sealing of the Grant in England.[5]

Consequently the judge found that the action was not valid and the action brought on behalf of the deceased person was a nullity.

THE COURT DOES NOT HAVE DISCRETION TO REMEDY THE MATTER

The judge rejected the argument that the court had a discretion to remedy the problem. The issue of proceedings in these circumstances was a nullity and could not be rectified.

  1. The Claimants’ alternative submission was that the Court has a discretion, pursuant to its general case management powers, to cure the defect. I was referred to the decision of Peter Smith J in Meerza v Al Baho[18]. One of the issues there was that it was accepted by the Claimants that, for the purposes of proceedings within England and Wales, one of the Claimants (Ms Hind) had no title to sue in England and Wales without obtaining a Grant of Letters of Administration[19]. His Lordship referred to the Millburn-Snell case in some detail and then[20] considered a number of decisions of the Court of Appeal dealing with amendments seeking to introduce a cause of action arising out of facts occurring subsequent to the commencement of proceedings, at which time no cause of action existed. His review of those cases showed that the practice of the court had changed from the 1970s by the time of the decision of the Court of Appeal in Maridive & Oil Services v CAN Insurance Co (Europe) Ltd[21]. The Maridive case was not cited to the Court of Appeal in Millburn-Snell. Peter Smith J himself had followed the Maridrive case in Mid Town Limited v City of London Real Property Co Limited[22]. In the Meerza case he came to the conclusion that based on the authorities he had reviewed, not cited in Millburn-Snell, he had discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly. He said[23]:
“…it seems to me clear that that power can be used to ensure that any technical objections whether procedurally or a matter of law can be overcome provided it is just so to do.”
Meerza did not deal with the position where the claim was brought in the name of the deceased Claimant. It is not therefore authority in respect of the first principle referred to in paragraph 5 above. The living Claimant in Meerza sued without having obtained the appropriate letters of administration. That is not this case.
  1. The Claimants seek to use Meerza as a reason for stating that even if an action is a nullity it can be overcome provided it is just to do so. Firstly, I distinguish Meerza for the reasons set out above. Secondly, I have these serious concerns about the statement of principle that CPR 3[24] is a cure-all for every defect however fundamental, whether or not it is one of law, and whether or not the authorities have previously determined that there is a nullity:
i. The rule against allowing amendments to a claim to plead a subsequently arising claim is one of practice not law and can be departed from when the justice of the case requires[25]. The change in approval in such cases derived from developments in the law relating to “relocation back” and amendment to the RSC at O18 R9 which specifically permitted amendment to plead any matter, even if it arose after issue of writ.[26]
ii. In Hendry v Chartsearch Ltd [27] Evans LJ (with whom the other Lords Justices agreed) said that the rules had changed and, “In accordance with modern practice generally, the court has a general discretion which should not be restricted by hard-and-fast rules of practice, if not of law, such as that which is suggested here.”
iii. Mance LJ in Maridive made it clear[28] that he did not “regard the present case as one where, as at the date when Moore-Bick J made his order allowing an amendment, the original claim could be said to be “incurably bad””. See also Mance LJ at paragraphs 34 and 37 where he emphasised that what was amenable to being cured in that case was an irregularity and not a nullity. Chadwick LJ[29]said “There is no absolute rule of law or practice which precludes an amendment to rely on a cause of action which has arisen after the commencement of proceedings…”. Peter Smith J[30] concluded that this statement by Chadwick LJ made it clear that any technical objection whether procedural or legal could be overcome provided it was just to do so. In my judgment it is not clear at all from those observations of Chadwick LJ; indeed the contrary is the case. The citation appears to me to be predicated upon the fact that if there were an absolute rule on law or practice precluding an amendment to rely on a cause of action arising out of the commencement of the proceedings, then the Court would not have a discretion. If I am wrong about that, the observations of Chadwick LJ are obiter, as the Maridive case was one not of nullity but irregularity.
iv. Although a judge must be cautious in making assumptions when a point has not been expressly argued before the Court of Appeal, I find it difficult to believe that the Court in Millburn-Snell[31] would not have considered their wide discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly, and so, in effect, decided the case per incuriam.
  1. In my judgment, there is no such discretion where the claim is a nullity, as Millburn-Snell and the more historic decisions make clear it is. If Meerzais not distinguishable I find myself constrained to depart from the reasoning and judgment of Peter Smith J. In their skeleton argument, the Claimants said that the Court can assist to ratify a claim that would otherwise be a nullity and relied upon the case of Adams v Ford [32]. There a solicitor took a pragmatic approach to include people in the claim form from whom he did not have authority. An application to strike out was refused. However, this decision of the Court of Appeal reinforces my judgment but there is no such power. Contrary to what the Claimants asserted, the Court of Appeal first approached the question of whether what the solicitor had done there was a nullity and expressly decided that it was not.[33] It is implicit in the judgment of Toulson LJ that had the proceedings been a nullity then they would not have been salvageable, save as to those Claimants who had authorised the issue of proceedings[34].

THE JUDGE WOULD NOT HAVE EXERCISED HIS DISCRETION EVEN IF IT WERE AVAILABLE

  1. In any event, if I had a discretion, I would not exercise it in favour of the Claimants in this case. I accept that in this massive case it is difficult for solicitors to keep track of Claimants but:
i. I cannot accede to a submission that the lead solicitors could not have done more, and that it was not possible for them to know prior to issuing that TC11 had died. This is particularly in the context that he had died some seven months prior to his entry on the Group Register. There is no evidence whatsoever as to the steps taken by the lead solicitors to keep in contact with TC11 during the relevant period.
ii. There is in evidence a copy of a protocol dated “version 30.01.2014”. This protocol is “For entry onto the Kenyan Emergency Group Litigation Register.” Amongst other things it provides:

“The protocol is framed by our professional obligations to the Court to ensure that only genuine claims are progressed and each firm has checks and balances in place to ensure the validity of their clients’ case…

Current basic requirements for entry on the Register for each Claimant…

22. Certification that at the time of entering the claim on the Register that they are not deceased.”

This version of the protocol pre-dated the entry of TC11 on the Register. I am informed that he was not certified as not being deceased. There is no explanation as to why this was not done. At the CMC on 12 March 2014, two days before TC11 was added to the Register when deceased, Counsel assured the Court that the lead solicitors were following that protocol. I do not of course impute any wrongdoing to any of the Claimants’ lawyers on the basis of this. However, the absence of an explanation would inhibit the exercise of a discretion in favour of TC11.
iii. Finally, it was accepted on behalf of the Claimants that they had not at any stage been misled by the terms of the GLO. In other words, their interpretation of it as being operative to include TC11 in the action from the date of issue of claim was not one which forced them to labour under any misapprehension. The submission based on the construction of the GLO was one of recent conception by the Claimants.
  1. For those reasons, I strike out TC11’s claim as a nullity.

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