THE ORDER THE COURTS CAN MAKE WHEN A DEFENDANT HAS DIED AND THERE ARE NO EXECUTORS OR ADMINISTRATORS

Another aspect of the judgment Currie v Thornley & Anor [2019] EWHC.  172 (Ch) relates to the order the courts can make when a defendant in a civil action  has died.

THE CASE

One of two defendants in a civil action had died. The defendant had given evidence, but died shortly afterwards, before judgment. None of the executors of the deceased’s estate were unwilling to be appointed.

THE JUDGE’S ORDER UNDER CPR 19.8(1)

With no-one willing to represent the estate the judge made an order that the action proceed in any event.

I have directed that the claim should proceed in the absence of a person representing Mr Moss’s estate under the provisions of CPR 19.8(1). When referring collectively to Mr Thornley and the late Mr Moss but not otherwise, I shall refer to them as the Respondents. All relevant causes of action against Mr Moss will have survived against his estate under the provisions of Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. References to his liabilities should thus be treated as a reference to the liabilities of his estate.

CPR 19.8

“(1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order –

(a) the claim to proceed in the absence of a person representing the estate of the deceased; or

(b) a person to be appointed to represent the estate of the deceased.”

NOTE:  THE SITUATION IS DIFFERENT WHEN THERE IS A GRANT OF PROBATE OR LETTERS OF ADMINISTRATION

(2) Where a defendant against whom a claim could have been brought has died and –

(a) a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;

(b) a grant of probate or administration has not been made –

(i) the claim must be brought against ‘the estate of’ the deceased; and

(ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

(3) A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with paragraph (2)(b)(i) where –

(a) the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or

(b) the person against whom the claim was brought was dead when the claim was started.

(4) Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.

(5) Where an order has been made under paragraphs (1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.