ISSUING PROCEEDINGS BEFORE LETTERS OF ADMINISTRATION ARE TAKEN OUT: A FATAL ERROR FROM THE OUTSET
In Qunintana -v- Surrey and Sussex Healthcare NHS Trust 28/03/2017 Master Cook upheld the established principle that an action cannot be brought by administrators of an estate before the letters of administration are taken out. Proceedings cannot later be amended after administration is obtained. The action is a nullity from the outset.
The claimant brought an action alleging that there had been medical mistreatment of her mother . The mother had died (but not as a result of the medical treatment that was the subject matter of the action). At the date of issue there were no letters of administration. The action was issued in the claimant’s personal capacity and on behalf of the mother. The defendant applied to strike out the action, the claimant applied to amend.
THE FATAL ACCIDENT ACT CLAIM
The claim was initially stated to be brought under the Fatal Accident Claim 1976. This was an error. There was no allegation that the deceased had died because of the medical treatment. The claimant therefore sought to amend to bring the claim under the Law Reform (Miscellaneous Provisions) Act 1934.
THE LAW REFORM ACT CLAIM
The Master rejected the claimant’s argument that CPR 17.4(4) displaced the previous case law that an action issued on behalf of an estate by a party who did not have letters of administration was a nullity from the outset.
- A claim that was a nullity from the outset cannot be given life by an amendment.
- Earlier dicta that it may be possible to use CPR 17.4(4) was not accepted.
- “I too question the correctness of the assessment of the effect of CPR 17.4(4) given by the Court of Appeal in Haq v Singh. I have the same difficulty as Rimer LJ in understanding how a claim, which is a nullity at inception, can be given life by an amendment. I share the view expressed by the editors of Williams Mortimer and Sunnucks that it would be extraordinary if proceedings could be saved by an amendment where a limitation period had expired but not where it hadn’t.”
THE HUMAN RIGHTS ACT CLAIM
The Master also struck out a claim under the Human Rights Act. The action was issued more than one year after the event.
“In the circumstances, it must be incumbent on the Claimant to adduce evidence from which the Court could conclude that it would be equitable to extend the one-year limitation period. The Claimant has singularly failed to so. In the circumstances, I conclude that Defendant’s application must succeed. There is an unanswerable case that the Human Rights Act claim is time barred.”
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