England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY
COURT (His Honour Judge Durman)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 January 2003

Lady Justice Arden :

1. This is an appeal against the order of His Honour Judge Durman sitting at Birmingham County Court, dated 12 June 2002, whereby the court exercised its discretion to allow the action to proceed pursuant to section 33 of the Limitation Act 1980 and made an order that the defendant should not pay the costs of the claimant of the preliminary issue. As to the court's decision under section 33, the only point taken is whether the judge was correct in concluding that the court had jurisdiction under section 33 of the Limitation Act 1980. Accordingly, no point is taken on the exercise of discretion under that section.
2. The appellant is the defendant in this action, which is brought by the claimant, Stephanie Piggott, against the estate of David Aulton (deceased) represented by David Murray. In this action the respondent claims damages for injuries and consequential loss sustained in a serious road accident on 14 June 1997. As a result of injuries received in the accident, the deceased died shortly thereafter. No personal representatives were appointed to administer his estate. The respondent first sought legal advice about four weeks after the accident. She gave instructions to her solicitors around April 1998. The claim was first intimated on her behalf to the deceased's insurers by letter dated 19 July 1999. On 13 June 2000, proceedings were issued against "the personal representatives of the estate of David Aulton (deceased)". The claim form, particulars of claim, medical reports and schedule of special damage were sent to the insurers on 13 June 2000. The insurers' solicitors responded referring, among other things, to CPR Part 19.8(2)(ii) and indicating that they were trying to identify whether personal representatives of the estate of the deceased had been appointed and suggesting a discussion on that point. No steps were taken to secure the appointment of a representative for the estate despite a number of prompting letters and messages from the insurers' solicitors. On 21 September 2000, the respondent's solicitors again sent the claim form, particulars of claim and a respondent's pack to the insurers' solicitors "by way of service upon you". However, the proceedings could not be effectively served in that way until a person had been appointed to represent the deceased's estate. Nothing was done to regularise the position before the period for service of the claim form expired.
3. In May 2001, following advice from counsel, these proceedings were discontinued and new proceedings were issued on 4 June 2001. On 7 August 2001, an order was made by consent for David Murray, a representative underwriter, to be appointed to represent the estate of the deceased and the proceedings were then served on the insurers' solicitors.
4. The defendants then took the point that the service of the new proceedings was an abuse of process under the principle established in Walkley v Precision Forgings Ltd [1979] 1 WLR 606. In that case, the plaintiff, who had contracted an industrial disease, issued proceedings against his former employers on 7 October 2001 claiming damages for personal injuries. The plaintiff did not proceed with this action and the time within which they could be served passed without service being effected. Subsequently, further proceedings were issued on his behalf, this time outside the limitation period and the plaintiff sought to rely on what is now section 33 of the Limitation Act 1980. There is no material difference between those provisions and section 33(1) of the Limitation Act 1980 and accordingly I will read the latter. It provides:-

"33(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and

b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specific cause of action to which the action relates."

5. In the Walkley case, the House of Lords held that once the plaintiff had started an action within the primary limitation period it was only in the most exceptional circumstances that he would be able to bring himself within this provision in respect of a second action to enforce the same cause of action. Lord Wilberforce, Viscount Dilhorne and Lord Diplock all gave speeches and Lord Edmund Davies and Lord Keith of Kinkel agreed with the speeches of Lord Wilberforce and Lord Diplock. The three speeches rely on the same point and it is sufficient for present purposes for me to quote from the speech of Lord Diplock at page 619:-

"My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he will be able to bring himself within section 2D [now section 33 of the 1980 Act] in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was brought before the master and the judge, cadit quaestio; he has not been prevented from starting his action by section 2A or section 2B [now sections 11 and 12 of the 1980 Act] or at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference that the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self-inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his actions. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisors. In the case of discontinuance the only cause of the prejudice is his own act." (emphasis in the original)

6. In the present case, the original proceedings were against the personal representatives of David Aulton (deceased). The second proceedings were against the estate of David Aulton (deceased). However, CPR 19.8 contains the following relevant provisions:-

"(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 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 …"

7. Accordingly, the original proceedings are deemed to have been brought against "the estate of the deceased" in accordance with CPR 19.8(2) notwithstanding that the claim form names as defendants the personal representatives of the deceased. Thus proceedings may be commenced against the estate of a deceased person but the proceedings so brought cannot be prosecuted until a person has been appointed to represent the estate of the deceased (see Re Amirteymour deceased [1979] 1 WLR 63).
8. A number of cases were cited to the judge. These included Shapland v Palmer [1999] 1 WLR 2068, a decision of this court in which it was held that the principle in Walkley applied only if the new proceedings were against the same parties. Accordingly, where the original proceedings had been against an employer on the grounds of vicarious liability for the acts of an employee, the subsequent proceedings against the employee were not within the Walkley principle. There was also cited to the judge another decision of this court, White v Glass (Kerr LJ and Hollings J, 17 February 1989, unreported), in which the original action had been against an unincorporated association and therefore improperly constituted and the new proceedings were against representatives of the unincorporated association. In that case, too, this court distinguished the Walkley case on the grounds, in this instance, that the first action had not been properly constituted. Accordingly, the plaintiff was held to be prejudiced by section 11 unless he was allowed to bring his new action under section 33. The judge was also referred to McEvoy v AA Welding and Fabrications Ltd [1998] PIQR 266. In that case proceedings were issued without leave against a company in liquidation. There were conflicting authorities on the question whether leave given after the proceedings were commenced could validate the proceedings retrospectively. This court did find it necessary to decide that question. The plaintiff's solicitors believed that proceedings were a nullity and started new proceedings. This court held that there were exceptional circumstances within the Walkley principle because of the reasonable belief that the original proceedings were a nullity.
9. Having considered these authorities, the judge concluded that the Walkley case was distinguishable on the grounds that in the present case there never had been "a fully fledged action".
10. Mr R M Moat, for the appellant, contends that this case falls within the passage which I have already cited from the speech of Lord Diplock in the Walkley case and outside any of the exceptions to the Walkley principle thus far established. The original proceedings here were correctly constituted. The new proceedings are against the same parties. For the Walkley principle to apply it is only necessary that the proceedings should be started properly and it was irrelevant that they could not be served without some further step being taken by the respondent's solicitors.
11. Mr Moat also submits that here the cause of prejudice was the failure of the respondent's solicitors to obtain the appointment of a representative. This is indistinguishable from the failure to serve proceedings themselves as in the Walkley case. The purpose of the requirement to show prejudice is to avoid a party having a second bite of the cherry. This case is indistinguishable from the situation where a solicitor needs to obtain an order for alternative service. It would be anomalous if the respondent could bring herself within section 33 in the present case but not if there had been a failure to serve. This submission mirrors the anomaly in the consequences of the Walkley decision. A case is within the Walkley principle if a party has issued proceedings and failed to serve them but not if he had never issued the proceedings at all.
12. Mr Moat submits that White v Glass is distinguishable as there the two sets of proceedings were not between the same parties and the original claim was impermissible. In the present case, the defendant is in both cases the estate of the deceased, as was subsequently held on similar facts by Cox J in Clay v Chamberlain [2002] EWHC 2529, in which it appears that the description in the claim form of the defendants was simply "the personal representatives of" the deceased. At all events, however, no order had been made under CPR 19.8(2)(b)(ii). Cox J said:-

"It seems to me that the defendant in both actions was the same, namely the estate of the deceased. The heading of both actions is identical and the personal representatives are named in each one."

13. Furthermore, on Mr Moat's submission, the decision in Shapland v Palmer is distinguishable because in that case the two sets of proceedings were against different parties. In Wilson v Banner Scaffolding (The Times, 22 June 1982), Milmo J decided that proceedings against a company in liquidation were a nullity because leave of the court had not been obtained before the proceedings were commenced (c.f. Re Saunders [1997] Ch.60, where Lindsay J held that leave to bring proceedings against an insolvent could be granted retrospectively). Accordingly, in the Wilson case, too, the first set of the proceedings were not properly constituted. The first action was thus not started in a way in which it could have been pursued. In the McEvoy case, the plaintiff reasonably believed the first action to be a nullity and thus the Court of Appeal held that the proceedings were a nullity.
14. Mr Simon Beard, for the respondent, submits that the Walkley principle only applies if the first action was fully fledged. Here, the first action was ineffective. Because no appointment of a personal representative had been obtained it was, in effect, in suspended animation (my words). The failure to serve (as in the Walkley case) is distinguishable from a failure to take necessary steps to serve (as in this case).
15. Mr Beard also submits that the defendants are not the same because the estate is not a legal person and that accordingly the decision of Cox J in Clay v Chamberlain was in error on this point.
16. Mr Beard also relies on the Human Rights Act 1998. He submits that the interpretation given to section 33 by the House of Lords in the Walkley case was in violation of the respondent's Convention right of access to court since the respondent is prevented from taking advantage of section 33 by a rule which applies without reference to the merits of her case. Mr Beard also refers to the Law Commission's Report on Limitation of Actions (Law Com. No.270) (2001) which regards the distinction made in the Walkley case between a party who fails to issue proceedings and a party who issues proceedings but fails to serve them as "artificial".
17. Mr Beard cross-appeals with the permission of this court against the judge's order as to costs and contends that an order for costs ought to have been made in the respondent's favour. The judge made no order because the need for the section 33 application was caused by the negligence of the claimant's solicitors, and the point was one which the appellant was entitled to argue. Mr Moat seeks to uphold the judge's order on costs on the grounds that it was within the judge's discretion.

Conclusions

18. It follows from CPR 19.8(3) that proceedings may be commenced against an estate even where no personal representative has been appointed. However, proceedings may not be continued against such a party: the claimant must apply to the court for an order appointing a person to represent the estate (CPR 19.8(2)(b)(ii)). What the respondent's solicitors in this case had to do, but failed to do, was to make an application for such an order and then to proceed to serve.
19. In my judgment, although the original proceedings were duly commenced, they were never properly constituted. For that purpose, all the components of a valid set of proceedings had to be present and one of those components in this kind of case, in my judgment, is that the parties between whom proceedings were started exist. The analogy which Mr Moat seeks to draw between an order under CPR 19.8(2) and an order for alternative service is not a good one because the former goes to the essence of the action, whereas the latter does not. There had to be an effective party against whom a dispute could be determined. The estate of a deceased person is not such a party. In these circumstances, it is not enough that the action was properly commenced and accordingly this case falls within the exception to the Walkley principle established in White v Glass where the original proceedings were brought against an unincorporated person. Like the estate of a deceased person such a body has no legal persona. Another analogous case would be that of a registered company which has been dissolved or struck off the companies register and in respect of which the time for applying to set aside the dissolution or restore the company to the register, under sections 652 and 653 of the Companies Act 1985 respectively, has expired. Such a company has no legal personality and cannot be sued. (If the application was made in time, an order for restoration of the company's name to the register would retrospectively validate proceedings taken after the striking off, but an order for the avoidance of a dissolution would not: see Buckley on the Companies Acts, 15 ed. [651.26], [653.28], [653.44]).
20. The claim in the present case is not a claim in rem (see Re Amirteymour, above). By contrast, admiralty proceedings can be brought in rem against a ship and judgments can be enforced against the ship, which has no legal personality, but the present action is not in rem but in personam. Here, a defendant having legal personality is required. In the old common law action of ejectment, which was used prior to the Common Law Procedure Act 1852 to enforce a person's right to land, actions were brought by and against fictitious characters, usually called John Doe and Richard Roe (but sometimes "Goodtitle" and "Badtitle") in order to obtain the benefit of the enhanced protection which the common law gave to leaseholders. However, the true owner was identifiable as he was (fictitiously) named in the title to the proceedings as tenant of John Doe for the purpose of the proceeding (for example, Doe d. [viz. on the demise of] Bristow v Pegge (1785) 1 Term Rep. 758n). Similarly, the practice was to bring the proceedings to the attention of the alleged trespasser who could apply to be substituted for the fictitious defendant, Richard Roe. Even today, possession proceedings can be brought against "persons unknown" (CPR 55.3(4)). However, in this instance CPR55 makes specific provision to enable such proceedings to be served on such persons and judgment obtained. In those cases, therefore, an action may be properly constituted without those persons being identified. There is no parallel in the case of proceedings against a deceased person's estate. A real defendant, having legal personality and capable of identification, is required. There was no such defendant in the first action.
21. Moreover, although on the face of it the parties to both sets of proceedings are the same, namely the estate of David Aulton (deceased), the defendants to the two sets of proceedings were not, on a proper analysis, the same. On this point, I disagree with the conclusion quoted above of Cox J in Clay v Chamberlain, and reject the submission of counsel founded upon it. The constitution of the defendant to the first action was a legal device for the purpose of bringing the proceedings before the court and should not be allowed to obfuscate the legal analysis of the position. The natural personality of the deceased came to an end on his death. His legal persona, that is the right to take possession of his property and the obligation to discharge his liabilities, could have passed to his personal representatives, as between whom and the deceased there would have been an identity of persona. But the deceased in this case had no personal representatives. Accordingly, the first action was brought against a person without legal personality. Mr Murray is not a personal representative of the deceased. He is simply the person appointed by the court to defend this action under CPR 19.8. There is, however, an identity between him and the deceased but it is only for the limited purpose for which he was appointed. That identity did not exist at the time of the first action. The CPR do not provide for the appointment to relate back to the deceased's death, and I can see no reason why it should relate back to the time of the first action.
22. Accordingly, as I see it, this case also falls into the principle of Shapland v Palmer. In that case Simon Brown LJ, with whom Clarke and (on this issue) Waller LJJ agreed, held as follows:-

"I accordingly understand the Walkley principle to exclude from section 33 only actions which involve the same defendant and the same cause of action as was the subject of earlier, timeous proceedings. It follows that strictly it does not catch the plaintiff's second action here. … By the same token that the Walkley principle itself rests upon a narrow and somewhat technical construction of section 33, so too it is in my judgment possible to escape it on just such grounds."

23. Thus, in this case too, the second set of proceedings were not against the same party as the first set of proceedings and accordingly the judge was correct in his conclusion that the Walkley principle was distinguishable.
24. For the reasons given above, in my judgment, the appeal must be dismissed. In the circumstances it is unnecessary to address the respondent's argument based on article 6 of the European Convention on Human Rights.
25. I would also dismiss the cross-appeal against the judge's order on costs. The judge was entitled to take the view that the respondent should not have the costs of her successful application under section 33 as the application was one which she had had to make in any event, on account of her solicitors' negligence. Such an order cannot be said in these circumstances to have been perverse: the judge did not require her to pay the other side's costs. This is not a case where the judge was influenced by extraneous considerations, and thus I reject the analogy sought to be drawn with Hall v Rover Services Ltd [2002] EWCA. Accordingly, I would also dismiss the cross- appeal.
26. Since writing this judgment, I have read the draft judgments of Simon Brown and Sedley LJJ. I agree with the judgment of Simon Brown LJ, including his observations on the cross-appeal on costs. I agree also with the judgment of Sedley LJ, though I prefer to express no concluded view on the second ground in Clay v Chamberlain as it was not argued before us. As to the criticism which Sedley LJ has made of the jurisprudence which has evolved since the Walkley decision, the fine distinctions to which he rightly refers would no longer be necessary if the recommendations contained in the Law Commission's Report on Limitation of Actions were implemented. The Government has accepted those recommendations in principle, subject to their further consideration of certain aspects of the Report, and has stated in Parliament that it will introduce legislation when a suitable opportunity arises: written answer (HC) 16 July 2002, vol. 389, col. 272W; (HL) 16 July 2002, vol. 637, col. 127 WA. It is to be hoped that that opportunity will arise in the near future because, among other reasons, it would avoid the need for litigants to have to seek the determination of the courts as to whether their case falls within, or outside, the Walkley principle, with all the costs and delay to litigants and the cost to the public purse that that involves.

Lord Justice Sedley

27. Agreeing as I do with both the reasoning and the conclusions of Arden LJ, I nevertheless add something because we are differing from the recent and carefully reasoned decision of Cox J in Clay v Chamberlain.
28. In that case as in this, the underlying problem was the injustice which would be produced by a too direct application of the principle in Walkley v Precision Forgings Ltd. The search for grounds of distinction has involved increasingly abstract refinements, and it is unsurprising that Cox J finally bridled at the suggestion that, in the same situation as we face here, there was any real difference between the defendants in the successive actions. She had the comfort, which we do not have, of being able to arrive at the just result on a second (but, in all candour, equally recondite) ground, namely that the 'wound' which the second action was designed to heal was not self-inflicted as it had been in Walkley, since it was the consequence not of discontinuance but, at least in part, of being led on by a 'defendant' who then had the first action struck out.
29. As Arden LJ has now explained, there is legal reality in the proposition that the defendants in the first and second actions are distinct persons. It is not satisfactory, even so, that the courts are being repeatedly driven by the potential consequences of too readily applying Walkley to isolate that authoritative decision by finding grounds of distinction which, while they may come into focus under the judicial microscope, are not always obvious to the naked eye. But I agree with the other members of the court that in this case, as in others, the process is justified in outcome and defensible in method.
30. I agree that both the appeal and, for the reasons given by Arden LJ, the cross-appeal should be dismissed – in the case of the latter, with the same reservations as Simon Brown LJ.

Lord Justice Simon Brown:

31. The House of Lords in Walkley -v- Precision Forgings Limited [1979] 1 WLR 606 construed (what is now) s33 of the Limitation Act 1980 as conferring a discretion to disapply statutory time limits only in those cases where the claimant has been prejudiced by not having issued proceedings within the primary limitation period.
32. This court in Shapland -v- Palmer [1999] 1 WLR 2068 pointed to the anomalies resulting from Walkley and ruled that "the s33 discretion arises in all cases save those which fall four-square within the Walkley principle" - see my judgment at 2074A. In the course of that judgment I considered what was described as the McEvoy line of authority (see McEvoy -v- A A Welding and Fabrication Limited [1998] PIQR P266) and said at p 2097:

"This [line of authority] establishes that where a first writ issued within the primary limitation period is itself ineffective (although not a nullity) through having been issued variously without consent against a company in liquidation (as in the McEvoy case [above]), or through being issued against an unincoporated association in its own name (White -v- Glass, The Times, 18 February 1989: Court of Appeal (Civil Division) Transcript No 140 of 1989), or through being issued against a company which had been struck off the register (In re Workvale Ltd [1992] 1 WLR 416), the Walkley principle does not apply to defeat in limine a second action , notwithstanding that in each of those cases the defect was recognised to be curable: in the McEvoy case [above] by the late grant of leave; in White -v- Glass [above] by substituting the names of the representative members; and in In re Workvale Ltd [above] by having the company restored to the register."

33. We decided that Shapland -v- Palmer itself fell into the same line of authority since the claimant's second action had been brought not, as the first action, against a company, but rather a personal defendant (whose negligence had been alleged in the first action to found the company's vicarious liability).
34. What, then, of the present case? Is the defendant in both of the actions brought here by the respondent the same, namely the estate of the deceased? Cox J in Clay -v- Chamberlain [2002] EWCH 2529 (QB), in circumstances identical with regard to the present point held "Yes". Like Arden LJ, I respectfully disagree.
35. True it is that by, virtue of CPR 19.8(2)(b)(i), where no grant of probate or administration has been made, "the claim must be brought against 'the estate of' the deceased". That, however, is a device under the rules to enable proceedings to be issued before personal representatives have been appointed; it does not have the effect of making the estate a recognised legal person - see Re Amirteymour (Deceased) [1979] 1 WLR 63.
36. In short, by the same token that a second claim was held permissible in White -v- Glass, because the first claim had been issued against an unincorporated association in its own name, the parties to the second claim accordingly being different, so too here it seems to me appropriate to regard the first action (albeit properly issued under the rules) as having been brought against a non-person in contradistinction to the second action which was brought against David Murray, a legal person duly appointed by the court to represent the deceased's estate.
37. It may well be, as Mr Moat in his most able address submits, that on this approach the eventual outcome of the dispute in Foster -v- Turnbull (Court of Appeal transcript 15 May 1990, TLR 22 May 1990) could and should have been different. Given, however, that in that pre-Shapland -v- Palmer era there was no argument of the kind now advanced for distinguishing Walkley with regard to a second claim whenever it is possible to do so, that reflection cannot assist the appellant.
38. I, too, therefore, would dismiss this appeal.
39. With regard to the respondent's cross-appeal against the judge's refusal to award her her own costs of the preliminary issue on which, of course, she succeeded, whilst not disagreeing with Arden LJ's conclusion that this appeal too should be dismissed, I would add just this. For my part, I should have preferred the judge to have awarded the respondent some proportion of her costs of the preliminary issue. True, it was only through the respondent's solicitors error in failing to progress the first action that she needed to seek the exercise of the court's s33 discretion with regard to a second action and it seems clearly reasonable, therefore, to deny her the costs of obtaining a favourable exercise of that discretion. Altogether less clear is it, however, that she should also have been denied the costs of establishing that, as a matter of law, there was indeed a discretion in the court capable of being exercised in her favour. With regard to this point I would have been inclined to make the defendants pay her costs, reflected, as stated, in a percentage order, not, let me emphasise by way of an issue-based order - see in this regard Budgen -v- Andrew Gardner Partnership [2002] EWCA Civ 1125. I do not, however, conclude that as a matter of principle the judge was bound to adopt that approach; rather it seems to me that the order made must be regarded as one having fallen within the generous ambit of his discretion on costs.
ORDER: Appeal dismissed. Order as agreed between the parties. (Order not part of approved judgment)