ON APPEAL FROM THE HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY
Claim No: 9LS30543
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE RIMER
| (1) REBECCA MILLBURN-SNELL
(2) SARAH MILLBURN
(3) CATHERINE MILLBURN
|- and -
|SUSAN CECILE EVANS
Mr Joshua Winfield (instructed by Roythornes LLP) for the Respondent
Hearing date: 22 February 2011
Crown Copyright ©
Lord Justice Rimer :
'The Claimants are the personal representatives of Mr Timothy Eric James Millburn (Deceased) who died on 7th March 2007 and are entitled to bring this claim on behalf of his estate.'
There followed allegations amounting to a claim that, as a result of a relationship with the defendant lasting from 1989 to 2006, Mr Millburn had acquired a 50% beneficial interest in Willow Farm and the riding school business carried on there. The case was founded on the principles of proprietary estoppel, with the 19 sub-paragraphs of paragraph 9 listing the work Mr Millburn allegedly carried out at Willow Farm in reliance on assurances given to him. The pleading was signed by counsel, provided the name of the claimants' solicitors and bore statements of truth dated 23 June 2009 signed by each of the claimants by which they said that they believed that 'the facts stated in these Particulars of Claim are true.'
'The Defendant makes no admissions in respect of the contents of paragraph 1 of the Particulars of Claim.'
That put in issue the claimants' title to sue and required them to prove their title at the trial by producing a grant to them of letters of administration of Mr Millburn's estate. The defendant served a request for further information as to the allegations in the Particulars of Claim, which was answered in two stages, the second following an order of 16 December 2009 that also gave directions for disclosure, witness statements and trial. A further order of 21 December 2009 fixed the trial date as 7 June 2010, with a time estimate of four days, and gave directions for trial bundles and skeleton arguments. On 28 January 2010 the claimants gave their disclosure by a list which, despite the issue as to their title to sue, did not include a grant of letters of administration. An order of 20 April 2010 permitted the adducing of expert evidence as to the value of Willow Farm and extended to 30 April 2010 the time for witness statements.
' The right of the Claimants to act as Personal Representatives has never been challenged by you. No Grant of Probate was taken out. It is permissible for persons to act as Personal Representatives either for or against a Trustee etc and we can find nothing in the rules (particularly CPR 19) that prevents an action continuing. CPR 19.8 merely requires that if a Defendant dies then the Claimant should apply for a person to be appointed and that seems to be the extent of the rule. This was a matter that we canvassed with Counsel long ago who concurred that it was suitable to pursue the claim in the form "Personal Representatives of the Deceased".
The three Claimants are the only children of the Deceased. They are the only persons entitled to make the claim. If the claim is successful the Court can direct that Probate should be applied for. '.
CPR Part 19
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.
(2) Where a defendant against whom a claim could have been brought has died and
(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 judge's judgment
'14. It is said for the claimants that Mr Millburn was "a person who had an interest in a claim." Indeed, prior to his death, solicitors were pressing that claim in correspondence with the defendant or those representing her. He therefore falls quite easily within the scope of CPR 19.8(1). The defendant would confine the scope of the word "claim" to a claim which was on foot in the sense that proceedings had been issued prior to the death of the claimant. It would, it is said, be wrong to give the ambiguous language of CPR 19.8(1) a construction which would overturn the long established principles exemplified by cases such as Ingall v. Moran. The defendants contrast CPR 19.8(1) with CPR 19.8(2), the latter provision expressly, and not just by arguable implication, deals with a situation in which a claim has not been brought. Further, while there is an obvious need for a provision such as CPR 19.8(2) in a situation in which what may be called a defence estate is unrepresented, because otherwise a claim cannot be brought at all, there is no such need where the death is that of a prospective claimant. Where it is a prospective claimant who has died, a claim can quite easily be constituted simply by obtaining a grant of letters of administration.
15. The matter is, as I have indicated, far from easy, and whichever way I were to decide it, I would readily give permission to appeal. After some hesitation, I have to say that I prefer the submissions for the defendant. The reasons are those which I have just rehearsed. First, I do not think that the language of CPR 19.8(1) is powerful enough to overturn the effect of a long series of decisions, or to convert an action which had been ex initio a nullity into one which is competent to proceed to trial. Secondly, I am impressed by the submissions made as to the contrast between 19.8(1) and 19.8(2), with particular reference to the absence of any need for an extensive interpretation of the former provision.
16. [Counsel for the claimants] raised an argument based on acquiescence. The defendants, it is said, have allowed this action to trundle along towards trial, and only at the last minute, and with a remarkable absence of the promptness with which applications to strike out should be made, have they thought fit to make the move made earlier this week. That would, in my submission, be a powerful consideration were my conclusion to have been that the power under 19.8(1) had arisen, and it had been said by the defendants that the court should not exercise its discretion under the rule in favour of the claimants. I do not, however, think that an argument based on acquiescence has weight in a situation in which I have been compelled to hold that the action is a nullity and that the defect is irremediable. The points raised on acquiescence may, however, have considerable bearing on issues as to costs.'
' was incompetent at the date when the writ was issued, and that the doctrine of the relation back of an administrator's title to his intestate's property to the date of the intestate's death when the grant has been obtained cannot be invoked so as to render an action competent which was incompetent when the writ was issued.'
Goddard LJ, at 172, said that 'this action was, and always remained, incompetent, and judgment ought to have been entered for the defendant.'
'As to the law, so far as this court is concerned it seems to me to be settled by Ingall v. Moran and Hilton v. Sutton Steam Laundry and, I may add, by Burns v. Campbell, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends.'
'(1) This rule applies where
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.'
'The effect of CPR r 17.4(4) is therefore to remove the effect of Ingall v. Moran  1 KB 160, the technicalities of which Singleton LJ in Finnegan v. Cementation Co Ltd  1 QB 688, 699 described as a "blot upon the administration of the law."
Pill LJ expressed like obiter views at paragraphs  to .
'Clearly, it would be an extraordinary result if proceedings could be saved by amendment where a limitation period has expired, but not where such a period had not expired. However, it is not clear on what statutory authority an amendment in the latter case is permitted and, without such authority, it is difficult to see how the earlier authorities (see fn. 65 above [which includes Ingall, Hilton and Finnegan]) can be ignored particularly as they deal with substantive rather than procedural law. Certainly the somewhat ambiguous words at the end of s. 35(7) of the Limitation Act 1980 would not seem sufficient for this purpose. It may be, therefore, that the true effect of CPR r. 17.4(4) is much more limited than the Court of Appeal in Haq suggests '.
'If in any cause, matter or other proceeding it shall appear to the court or a judge that any deceased person who was interested in the matter in question has no legal personal representative, the court or judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for all the purposes of the cause, matter or other proceeding .'
'Finally, within my own experience, although no case was cited to us on the point, it is very common in the Chancery Division for a person to be appointed to represent the estate of a deceased person under this rule, when such deceased person has never been a party to the litigation. One of the most common cases is where there is a doubt as to the true construction of a will; the trustees of the will take out an originating summons and it is their duty to make parties to that originating summons the persons who are interested in putting before the court various different constructions of the will. It often happens that some person who, if alive, would have a very direct interest in putting an argument before the court is dead, and has no legal personal representative. In these circumstances, it is the usual practice for the Chancery Division to appoint a person to represent the estate of the deceased person under this rule. I have never heard it suggested until to-day that that could not be done unless the deceased person had been a party to the litigation at some stage,'
Lord Justice Hooper :
Lord Neuberger MR :