Piggott v Aulton

The Court of Appeal dismissed the defendant's appeal against an order allowing the claimant to proceed with a personal injury claim pursuant to section 33 of the Limitation Act 1980. The court held that although proceedings had been commenced within the primary limitation period, they were never properly constituted because no personal representative had been appointed and the estate of the deceased is not a legal person capable of being sued in the sense required for in personam proceedings. CPR 19.8(2) and (3) permit commencement against "the estate of" a deceased where no grant of probate has been made, but they also require an application to appoint a representative before the proceedings can be prosecuted; that deficiency put the original proceedings outside the Walkley v Precision Forgings Ltd principle. The judge's exercise of discretion under section 33 was not challenged; the only issue was jurisdiction under section 33, which the court upheld.

Background and parties. The respondent (claimant) brought a claim for damages for injuries sustained in a road accident on 14 June 1997. The injured driver subsequently died shortly after the accident. No personal representatives were appointed for the deceased. The claimant first instructed solicitors in 1997–1998 and issued proceedings on 13 June 2000 against "the personal representatives of the estate of David Aulton (deceased)". Because no representative had been appointed the proceedings could not be effectively served. Those proceedings were discontinued and new proceedings were issued in June 2001. An order under the CPR for appointment of a representative (David Murray) was made in August 2001 and service followed.

Nature of the application. The defendant argued that the second proceedings were an abuse of process under the Walkley principle and that section 33 of the Limitation Act 1980 could not be invoked because the claimant had previously started proceedings within the primary limitation period. The claimant sought the court's direction under section 33 that the limitation provisions should not apply.

Issues for determination.

1. Whether the court had jurisdiction under section 33 to allow the second action to proceed given the earlier proceedings; and
2. If Walkley applied, whether any established exceptions (for example those in Shapland, White v Glass, McEvoy and related authorities) operated to permit the section 33 discretion.

Court's reasoning. The court analysed CPR 19.8(2) and (3) and concluded that while CPR allows proceedings to be commenced against "the estate" where no grant has been made, such proceedings cannot be prosecuted until a representative has been appointed. The first proceedings were therefore never "properly constituted" for the purpose of the Walkley principle because one necessary component of valid proceedings was absent: an effective defendant with legal personality. The court placed this case alongside authorities (for example White v Glass and other McEvoy-line cases) where the first action was ineffective because it had been brought against a non-person or otherwise improperly constituted defendant. The court rejected the contrary view in Cox J's decision in Clay v Chamberlain and held that the second action was not against the same legal party as the first. Having found the Walkley principle distinguishable, the court upheld the judge's order permitting the claimant to rely on section 33 and dismissed the appeal. The cross-appeal on costs was also dismissed: the judge legitimately exercised his discretion to refuse the claimant's costs of the preliminary issue given the solicitors' negligence.

Procedural posture. Appeal from Birmingham County Court (His Honour Judge Durman). The only issue before the Court of Appeal was whether the court had jurisdiction under section 33 of the Limitation Act 1980 to permit the re-issued proceedings to proceed.

Appeal dismissed. The Court of Appeal held that the original proceedings, although commenced within the primary limitation period, were never properly constituted because no personal representative had been appointed and the estate of a deceased is not a legal person against whom in personam proceedings can be prosecuted. Accordingly the Walkley principle did not bar the claimant from obtaining a second action and the court had jurisdiction under section 33 of the Limitation Act 1980 to allow the action to proceed. The cross-appeal on costs was also dismissed as within the judge's discretion.

On appeal from Birmingham County Court (His Honour Judge Durman) — order dated 12 June 2002 permitting the action to proceed pursuant to section 33 Limitation Act 1980. Neutral citation of this Court of Appeal decision: [2003] EWCA Civ 24.