AN ACTION ISSUED ON BEHALF OF AN ESTATE BY SOMEONE WITHOUT AUTHORITY AT THE TIME OF ISSUE IS “A DEAD THING INTO WHICH NO LIFE COULD BE INFUSED”

One search term that regularly leads people to this site is “can I issue on behalf of an estate when I don’t have letters of administration”.  There are variations on this, but the central theme is always the same.   The second part of the judgment of the Court of Appeal in  Jennison v Jennison & Anor [2022] EWCA Civ 1682 is of considerable interest. It confirms the principle that if proceedings are issued “on behalf” of an estate by someone who does not, in fact, have authority at the time proceedings are issued, then those proceedings are a nullity. Even if letters of administration are obtained later the action cannot be revived.  The first part of the judgment, however, reiterates the principle that an executor’s authority derives from the will.  An executor does not need a grant of probate to issue proceedings.

 “… the bringing of a claim on behalf of an estate by a person who, at the time, lacks standing to represent it is not a mere “error of procedure”, but renders the proceedings a nullity…. They are, in the circumstances, “a dead thing into which no life could be infused” … and “born dead and incapable of being revived” … Had, therefore, I considered the claimant to have had no standing when she issued the claim in February 2019, I would have held that CPR 3.10 had no application and that the proceedings had to be struck out.”

THE CASE

The claimant was the executrix of the will of her husband who died in New South Wales. Probate was granted in New South Wales in 2008. In February 2019 she issued proceedings on behalf of the estate. The defendants did not admit that she had the right to bring proceedings in England and Wales. In November 2019 the grant of probate was resealed under the Colonial Probates Act 1982.

The defendants applied to strike out the claim arguing that the claimant did not have the right to bring proceedings at the time proceedings were issued. That application was refused by the District Judge and the Circuit Judge on appeal.

THE DEFENDANTS’ UNSUCCESSFUL APPEAL TO THE COURT OF APPEAL

The defendants’ appeal was unsuccessful. The court held that the claimant had acquired the right to bring the action from the will.  She was to be regarded as having acquired title to the cause of action on the deceased’s death and had standing to bring the action when she did.

HOWEVER… CPR 3.10 WOULD NOT HAVE HELPED

The appeal was decided on the relatively rare issue (in the English and Welsh courts) of the law of probate in New South Wales. However the judgment on CPR 3.10 is of much more general significance. It underlined the difficulties a claimant has who does not have probate.  If the claimant had had to rely on CPR 3.10 alone then the action would have failed.

THE JUDGMENT ON THIS ISSUE

1. 1. Supposing that, contrary to the conclusions I have reached thus far, the claimant had no standing to issue the claim when she did, could the Court nevertheless allow the proceedings to continue under CPR 3.10? That reads:

“Where there has been an error of procedure such as a failure to comply with a rule or practice direction—

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.”

1. 1. We were referred to a number of authorities on this issue. The earliest of them was Millburn-Snell v Evans. In that case, the claimants had purportedly brought proceedings on behalf of an intestate’s estate without first obtaining letters of administration. The Court of Appeal held them to be an incurable nullity. No one seems to have suggested that the claim could be rescued pursuant to CPR 3.10, but CPR 19.8(1) was said to be in point. That provides:

“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.”

1. 1. The Court of Appeal rejected the contention that CPR 19.8(1) could apply. Rimer LJ, with whom Lord Neuberger MR and Hooper LJ agreed, said in paragraph 30:

“The claimants’ invocation of rule 19.8(1) was responsive to the defendant’s strike out application. Logically, however, if they are right about rule 19.8(1), they could (indeed should) promptly after issuing their claim form have applied to the court for an order that the nullity they had thereby conceived should have life breathed into it by way of an order that they be appointed to represent the estate of the deceased intestate and the claim permitted to proceed to trial. The reason that any such application should and would have failed is because rule 19.8(1) does not, in my view, have any role to play in the way of correcting deficiencies in the manner in which proceedings have been instituted. It certainly says nothing express to that effect and I see no reason to read it as implicitly creating any such jurisdiction. It is, I consider, concerned exclusively with giving directions for the forward prosecution towards trial of validly instituted proceedings when a relevant death requires their giving. In the typical case, that death will occur during their currency and will usually be of a party. More unusually, it may have preceded them. But on any basis it appears to me clear that it is no part of the function of rule 19.8(1) to cure nullities and give life to proceedings such as the present which were born dead and incapable of being revived.”

1. 1. In Meerza v Al Baho [2015] EWHC 3154 (Ch), in contrast, Peter Smith J held that proceedings could be saved under CPR Part 3. The claimant had issued a claim on behalf of an intestate without obtaining letters of administration. Having cited Maridive & Oil Services (SAE) v CNA Insurance Co (Europe) Ltd [2002] EWCA 369, [2002] 1 All ER (Comm) 653 (“Maridive“) and a decision of his own, Midtown Ltd v City of London Real Property Co Ltd [2005] EWHC 33 (Ch), Peter Smith J said in paragraph 46:

“It seems to me that based on those authorities … I have a discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly. In particular based on Chadwick LJ’s observations [in Maridive] 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. In the present case it is clearly just to accede to an application to amend to perfect the claim by reason of the grant of the letters of administration if that were necessary.”

1. 1. In Maridive, on which Peter Smith J placed reliance, a claimant had sought to raise a new claim in its reply. Mance LJ held this to be irregular in paragraph 34 but added, “Irregular though it was, I see no basis for treating it as a nullity”. In paragraph 37, he said:

“Once one concludes, as I do, that the reply on 14^th March 2000 introduced a claim, which was, though irregular, nonetheless not a nullity, and that the irregularity can be cured by allowing the claim to be proceeded with by subsequent amendment of the particulars of claim, I have no doubt that the third condition [in the relevant bond] was satisfied as from 14^th March 2000.”

In paragraph 54, in the passage to which Peter Smith J made reference in paragraph 46 of his judgment in Meerza v Al Baho, Chadwick LJ 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 the proceedings in circumstances where (but for the amendment) the claim would fail. The court has a discretion whether or not to allow the amendment in such a case; a discretion which is to be exercised as justice requires. In the present case I have no doubt that, had the claimants sought to amend their particulars of claim (so as to rely on the demand of 13 March 2000) within the period from 12 April to 30 August 2000, they should have been permitted to do so. There was no reason why they should have been required to commence new proceedings.”

1. 1. Millburn-Snell v Evans, Meerza v Al Baho, Maridive and Midtown Ltd v City of London Real Property Co Ltd were all considered by Stewart J in Kimathi v Foreign and Commonwealth Office (No 2) [2016] EWHC 3005 (QB), [2017] 1 WLR 1081 (“Kimathi“). There, as the headnote explains, “the defendant sought to have the claim of one of a number of test claimants struck out on the ground that it was a nullity, it having been brought in the name of a deceased claimant personally rather than in the name of his personal representative”, and Stewart J acceded to the application. He distinguished Meerza v Al Baho on the basis that it “did not deal with the position where the claim was brought in the name of the deceased claimant” (paragraph 17) but also said this:

“18.  The claimants seek to use the Meerza case 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 the Meerza case for the reasons set out above. Secondly, I have these serious concerns about the statement of principle that CPR Pt 3 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: see Toepfer v Cremer [1975] 2 Lloyd’s Rep 118, 125, per Lord Denning MR. The change in approval in such cases derived from developments in the law relating to ‘relocation back’ and amendment to RSC Ord 18, r 9 which specifically permitted amendment to plead any matter, even if it arose after issue of writ: see Vax Applicances Ltd v Hoover plc [1990] RPC 656.

(ii)  In Hendry v Chartsearch Ltd [1998] CLC 1382 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)  In the Maridive case … , para 23 Mance LJ made it clear 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 paras 34 and 37 where Mance LJ emphasised that what was amenable to being cured in that case was an irregularity and not a nullity. Chadwick LJ, at para 54, 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 …’ In the Meerza case … at [46] Peter Smith J 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 of 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 (Lord Neuberger of Abbotsbury MR, Hooper and Rimer LJJ) in the Millburn-Snell case … would not have considered their wide discretion under CPR Pt 3 to apply the overriding objective to enable cases to be dealt with justly, and so, in effect, decided the case per incuriam.

19.  In my judgment, there is no such discretion where the claim is a nullity, as the Millburn-Snell case and the more historic decisions make clear it is. If the Meerza case is 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 [2012] 1 WLR 3211. 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 [that] 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: see paras 27–32. 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: see para 36.”

1. 1. In Jogie v Sealy, Lord Burrows (with whom Lady Rose agreed) said this at paragraph 55 about Kimathi:

“In [Kimathi], Stewart J rejected the view, that had been accepted by Peter Smith J in Meerza v Al Baho … , that the courts had a discretion under CPR Part 3 (dealing with the courts’ case management powers) to apply the overriding objective to overcome the nullity of a claim, by allowing an amendment as to the capacity of a claimant (who had only subsequently been granted letters of administration) where it was just to do so (eg where it would cause no prejudice that could not be dealt with by a costs order). As Stewart J said at para 19:

‘In my judgment, there is no such discretion where the claim is a nullity, as the Millburn-Snell case and the more historic decisions make clear it is. If the Meerza case is not distinguishable I find myself constrained to depart from the reasoning and judgment of Peter Smith J.’

Stewart J regarded it as an untenable argument that Millburn-Snell was decided per incuriam because the Court of Appeal had not considered the application of the overriding objective and CPR Part 3. I agree with Stewart J’s analysis.”

1. 1. I, too, consider that Stewart J was right that the “wide discretion” conferred by CPR Part 3 cannot be used to validate a nullity. CPR 3.10 applies in relation to “an error of procedure such as a failure to comply with a rule or practice direction”. Dyson LJ explained in Steele v Mooney [2005] EWCA 96, [2005] 1 WLR 2819 that CPR 3.10 “gives a non-exhaustive definition of a procedural error as including a failure to comply with a rule or practice direction” and that “procedural errors are not confined to failures to comply with a rule or practice direction”: see paragraphs 18 and 20. Even so, CPR 3.10 is not applicable where the proceedings that have purportedly been brought are to be regarded as a nullity. CPR 3.10 allows existing proceedings to be regularised, not the creation of valid proceedings. It is not, to use words of Stewart J, “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”. As Stewart J noted, nothing in Maridive suggests otherwise: in that case, Mance LJ stressed that the claim with which the Court was concerned was, “though irregular, not a nullity”.

1. Turning to the present case, the bringing of a claim on behalf of an estate by a person who, at the time, lacks standing to represent it is not a mere “error of procedure”, but renders the proceedings a nullity: see paragraphs 18, 24 and 25 above. They are, in the circumstances, “a dead thing into which no life could be infused” (to quote Hodson LJ in Burns v Campbell) and “born dead and incapable of being revived” (to quote Rimer LJ in Millburn-Snell v Evans). Had, therefore, I considered the claimant to have had no standing when she issued the claim in February 2019, I would have held that CPR 3.10 had no application and that the proceedings had to be struck out.