Kerry Underwood

DEATH, PORTALS AND LITIGATION

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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.

In

Hilton v Proudfoot and Another, Middlesbrough County Court, Claim No E03 YX 717, 15 April 2019

the court held that fixed costs do not apply to a claim where a person starts a claim in the portal but then dies, causing it to be excluded by virtue of Paragraph 4.5 of the Road Traffic Accident portal (Paragraph 4.3 of the Employers ‘Liability/Public Liability portal).

The same logic would apply to a situation where a claim is brought by someone who then loses capacity, or becomes bankrupt.

Paragraph 4.5 of the RTA portal provides:

“This Protocol does not apply to a claim—

(1) in respect of a breach of duty owed to a road user by a person who is not a road user;

(2) made to the MIB pursuant to the Untraced Drivers’ Agreement 2003 or any subsequent or supplementary Untraced Drivers’ Agreements;

(3) where the claimant or defendant acts as personal representative of a deceased person;

(4) where the claimant or defendant is a protected party as defined in rule 21.1(2);

(5) where the claimant is bankrupt; or

(6) where the defendant’s vehicle is registered outside the United Kingdom”

 

Paragraph 4.3 of the EL/PL portal is in similar terms:

 

“4.3  This Protocol does not apply to a claim—

(1) where the claimant or defendant acts as personal representative of a deceased person;

(2) where the claimant or defendant is a protected party as defined in rule 21.1(2);

(3) in the case of a public liability claim, where the defendant is an individual (‘individual’ does not include a defendant who is sued in their business capacity or in their capacity as an office holder);

(4) where the claimant is bankrupt;

(5) where the defendant is insolvent and there is no identifiable insurer;

(6) in the case of a disease claim, where there is more than one employer defendant;

(7) for personal injury arising from an accident or alleged breach of duty occurring outside England and Wales;

(8) for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;

(9) which includes a claim for clinical negligence;

(10) for mesothelioma;

(11) for damages arising out of a road traffic accident (as defined in paragraph 1.1(16) of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents).”

 

There is no authority on the point. The only former portal cases known to be excluded from fixed costs are those subsequently allocated to the multi-track – see Qader v ESure [2016] EWCA Civ 1109.

The judge observed that the portal expressly provides that it, and therefore fixed recoverable costs, should not apply to claims brought by the personal representatives, that is that they should not be subject to the “swings and roundabouts” of fixed costs cases.

This is presumably because of the potential additional complexity and expense of such claims.

The court also stated that it would be illogical if the applicable costs regime depended upon chance, that is whether the claim had been lodged the day before the injured person died, rather than just after.

While the deceased was the claimant in the portal, he was not the claimant in the Part 7 proceedings; that was the personal representative, who could not have brought the claim in the portal, due to Paragraph 4.5.

 

“35. Secondly, where the claimant in a Part 7 claim dies the claim cannot continue unless the personal representatives apply to the court for permission to amend the claim form and be added as a party. Although the cause of action survives after the injured party’s death it can only be pursued by the personal representatives if they become claimants pursuant to CPR 19.

36. I see no reason why the same logic should not apply to claims within the Protocol, namely that the claim cannot be pursued because the claimant is dead although the cause of action survives for the benefit of the estate. However, in contrast to CPR Pt.19 the Protocol contains no express mechanism for amending the claim to add or substitute an executor as claimant.

37. I consider that the defendant is right to point out that the claimant under the Protocol is the person starting the claim under the Protocol. However, in my judgment, that is precisely why the claim cannot continue under the Protocol, namely because MH is no longer able to pursue it. The only way that the surviving cause of action can be pursued is by a new claimant, the personal representative, who was not entitled to bring a claim under the Protocol.

38. Further, even if the CPR provisions on amendment are imported into the Protocol the doctrine of “relation back” would prevent the personal representatives being substituted for MH. If, on amendment, the claim is deemed to have been commenced by the personal representatives from the outset then such a claim cannot proceed under the Protocol by reason of 4.5.

39. Finally, if it is necessary to do so, I consider that a purposive construction should be applied to 4.5 such that it prevents personal representatives proceeding with Protocol claims after the claimant’s death in order to prevent the arbitrary costs consequences that would follow if the defendant’s submission was correct.

40. Therefore, I am satisfied that this is not a claim that has exited the Protocol. MH’s claim within the Protocol has effectively been stayed or otherwise terminated by his death. This claim by the personal representative is a fresh claim to enforce the same cause of action which could not be brought within the Protocol and therefore the FCR does not apply to it.

41. However, in my judgment it would plainly be unjust for costs to be awarded on the standard basis whilst MH’s claim was proceeding within the Protocol. At that stage there was nothing “out of the ordinary” about the claim and FRC represent the reasonable and proportionate costs for the work carried out at that stage.”

Consequently, the court ordered fixed recoverable costs up until the claimant’s death and standard costs thereafter.

I am grateful to Alex Littlefair of counsel, who represented the successful claimant, for information concerning this case.

 

Suing the Estate When Probate Is Not Taken Out

When someone wishes to sue the estate of a person who has died, then, if probate has been granted, it is the executors or administrators who must be sued, but, in relation to nearly half of deaths in the United Kingdom, probate is not taken out.

The Probate Service publishes a document which sets out the procedure for finding out whether a Grant of Probate or Letters of Administration has been granted.

The situation is governed by CPR 19.8(2) to (5) which reads as follows:

(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.”

 

The rules do not say when the application should be made but obviously it must be made before service, and therefore it makes sense to apply when issuing.

There is then the issue of who that application should be served upon.

Generally, this will be the proposed representative of the estate, but if this cannot be agreed, or it is unclear who it should be, then the court will determine the representative for the estate.

Written by kerryunderwood

June 19, 2019 at 8:32 am

Posted in Uncategorized

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