Piggott v Aulton

Proceedings may be commenced against the estate of a deceased person under the CPR before personal representatives are appointed. However, an in personam action cannot be properly constituted or prosecuted until the court appoints a legal person to represent the estate.

Accordingly, where an earlier claim was issued against a non-person and a later claim was brought against a court-appointed representative, the actions were not against the same defendant. The restrictive principle in Walkley did not exclude the court’s discretion under section 33 of the Limitation Act 1980.

The claimant sought damages for injuries sustained in a road accident caused by the deceased. No personal representatives had been appointed for his estate. Her first claim was issued within the primary limitation period against the personal representatives of the deceased, but no representative was appointed and the claim was not effectively served.

After discontinuing that claim, she issued fresh proceedings outside the limitation period. A representative underwriter was appointed by consent to represent the estate, and the new proceedings were served. The County Court permitted the action to continue under section 33 of the Limitation Act 1980, but made no costs order in the claimant’s favour on the preliminary issue.

The defendant appealed on the footing that Walkley deprived the court of jurisdiction. The claimant cross-appealed on costs.

Unanimously, the Court of Appeal dismissed both the appeal and the cross-appeal. Lady Justice Arden gave the principal judgment. Lord Justices Sedley and Simon Brown agreed with the result and reasoning, subject to reservations immaterial to the outcome.

1. Although CPR 19.8 permitted the first claim to be commenced against the deceased’s estate, that procedural device did not make the estate a legal person. The claim could not be prosecuted until a person was appointed to represent the estate. In a personal action, there had to be an effective defendant capable of being bound by the court’s determination.

2. The first proceedings were therefore duly commenced but never properly constituted. The subsequent appointment of Mr Murray was for the limited purpose of defending the later proceedings. It did not relate back to create a legally capable defendant when the first action was issued.

3. The restrictive principle in Walkley v Precision Forgings Ltd, [1979] 1 WLR 606, applied only where the second action involved the same defendant and cause of action as timely proceedings. The first action had been brought against a non-person, whereas the second was brought against a court-appointed legal person. The actions were not against the same defendant. The case accordingly fell within the reasoning of White v Glass and Shapland v Palmer, [1999] 1 WLR 2068, rather than within Walkley. The judge had jurisdiction to exercise the section 33 discretion.

4. The costs order fell within the generous ambit of the judge’s discretion. The claimant’s solicitors’ failure to progress the first action had made a section 33 application necessary. The judge could deny the claimant her costs of that successful application without making her liable for the defendant’s costs.

• Court of Appeal (Civil Division) — dismissed the defendant’s appeal and the claimant’s cross-appeal: [2003] EWCA Civ 24.
• Birmingham County Court — His Honour Judge Durman allowed the action to proceed under section 33 of the Limitation Act 1980 and made no order requiring the defendant to pay the claimant’s costs of the preliminary issue.