Client Briefing: Clarity around the progress of claims after a claimant’s death

Confusion can sometimes arise as to how proceedings should be correctly commenced or continue after the death of a claimant. This briefing is intended to provide guidance and clarity for our clients.

It is important to remember if an individual dies before a claim has started, the claim must be brought by the personal representatives of the deceased (if they have been granted either probate, or letters of administration).

The capacity of the executor or administrator must be made clear within their description, in the relevant section of the claim form.

The claim cannot be brought in the name of a deceased person, as outlined in Kimathi v FCO.

Where a claimant dies after the claim form is issued an administrator or executor cannot sue under S1 of the Law Reform (Miscellaneous) Provisions Act 1934 - unless probate or a grant of letters of administration has been obtained.

The position was clarified by the court in the case of Ingall v Moran by LJ Scott who highlighted the following pertinent points:

• “The cause of action arose, and vested in the deceased lad, at the moment he was injured …
• If he had left a will, it would at the moment of his death automatically have vested in his executor …
• As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued …
• Then and not before would it pass from the President to the Administrator …”

The writ in Ingall was issued in September 1942 and the grant of probate was issued in November of the same year.

The court held at the time the writ was issued, the administrator had no shadow of title. The writ was a nullity – it was born dead and could not be revived.

Millburn-Snell v Evans further clarified the position in 2012. In that case, before the deceased’s death his solicitors had been advancing a case in correspondence that the claimant had an interest in some land, based on proprietary estoppel.

No claim had in fact been issued as at the date of the claimant’s death. A year after death, the claimant’s solicitors, now acting for the deceased’s daughters, issued a claim stating the daughters were the personal representatives of the deceased.

Before trial, the defendant realised the daughters had no grant and applied to strike the claim out. The Court of Appeal held the claim was a nullity and CPR 19(8)(1) could not be used to cure the defect.

Keoghs’ comment

Insurers and defendants should be aware of the correct procedural position before considering claims. We hope this article provides some clarity in an area which is known to potentially cause confusion for defendants and their insurers.  The chart below outlines relevant points to consider before claims may progress, both pre and post-litigation.

How to bring a claim after the death of a claimant

For more information please contact:

Steve Gowland
Associate
T: 01204 672325
E: sgowland@keoghs.co.uk

Darrell Smith
Partner
T: 01204 678997
E: dsmith@keoghs.co.uk