Kerry Underwood


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Court’s Powers When A Party Dies

The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.


Currie v Thornley & Anor [2019] EWHC 172 (Ch) (01 February 2019)

the court was faced with a situation where one of two defendants in a civil action had died, and the defendant who died had already given evidence, and died before judgment.

At the relevant time none of the three executors had confirmed their willingness to be appointed. Two had refused, and one was considering his position.

The judge applied the provisions of CPR 19.8(1), and CPR 19.8 reads:

“(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.

(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.”

It will be noted that once a Grant of Probate, or Letters of Administration, have been granted, the court has no power to allow the claim to proceed in the absence of a person representing the estate of the deceased.

This may mean that there will be circumstances where it is in the interest of the estate of the deceased party to delay obtaining a Grant of Probate or Letters of Administration so as to allow CPR 19.8(1) to be applied.

Obtaining a Grant of Probate or Letters of Administration inevitably takes some time, and therefore it may be quicker, and preferable for all parties, for the court to allow the claim to proceed in the absence of a person representing the estate of the deceased.

Fresh Proceedings Possible When Previous Proceedings On Behalf Of Deceased Were A Nullity


Personal Representatives of Hutson and another v Tata Steel UK Ltd [2019] EWHC 143 (QB) (1 February 2019)

in a group action seeking compensation from an employer for injuries and loss caused by harmful fumes and dust, the High Court granted various applications to extend time for entering the Group Litigation Order, thereby allowing cases to proceed.

Some employees had died and claims were advanced by their estates.

In three cases, the claim had purportedly been entered on the Group Litigation Order register but the requisite formalities had not been complied with before the deadline.

The court confirmed that fresh proceedings on behalf of a deceased could be issued, noting that as a matter of law, any claim purportedly commenced by a deceased party was a nullity which was incapable of subsequent rectification

(Kimathi v Foreign and Commonwealth Office (No 2) [2016] EWHC 3005.)

However, the court accepted the claimants’ argument that the fact that a claim is a nullity does not preclude the commencement of a subsequent claim which is not.

There may be circumstances in which the subsequent claim could be struck out as an abuse of the process of the court but, until this happens, the second claim was procedurally valid.

Otherwise, where an action was commenced on behalf of a claimant who had, unbeknown, died on the previous day, it would be extraordinary that his estate was thereby precluded from starting a fresh action if it was properly constituted.

The court had a discretion to extend the time within which the three claims could be entered on the register and that discretion was extended by reference to the tests for relief from sanctions established in

Denton v TH White Ltd [2014] 1 WLR 3926

and the overriding objective.

Although the defaults were serious and significant and due to culpable oversight, considering all the circumstances, the court granted relief.

The breaches did not significantly prevent the court or the parties from conducting the litigation efficiently and at proportionate cost and there had not been a history of non-compliance.

It was just to extend time.

The timetable for the future progress of the Group Litigation Order was not jeopardised, it would not save any expense to refuse and the defendant could not show real prejudice if time was extended.

Written by kerryunderwood

February 20, 2019 at 6:42 am

Posted in Uncategorized

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