Millburn -Snell & Ots v Evans

CPR Part 19.8(1) governs the continued prosecution of validly instituted proceedings after a relevant death where an estate is unrepresented. It does not cure a nullity caused by issuing proceedings on behalf of an intestate’s estate without a grant of administration. An administrator derives title to sue from the grant, and a later grant cannot retrospectively validate proceedings that were incompetent when issued. The rule is not an optional substitute for first obtaining a grant of administration.

Where a successful defendant had no earlier knowledge of the claimant’s lack of title, a late strike-out application did not justify a costs penalty. The claimant was liable for the defendant’s wasted costs, subject to directions facilitating any promptly issued, properly constituted fresh claim.

The appellants, the intestate’s daughters, issued a proprietary-estoppel claim asserting that they were his personal representatives. They had not obtained letters of administration. The respondent denied the assertion of title and, shortly before trial, applied to strike out the claim.

His Honour Judge Langan QC, sitting in the Chancery Division, held that the proceedings were a nullity and that CPR Part 19.8(1) gave no power to validate them. He struck out the claim and made a partial costs order. The appellants appealed the construction of CPR Part 19.8(1) and the costs order. The respondent cross-appealed on costs.

The central issue was whether CPR Part 19.8(1) could authorise the continuation of proceedings purportedly brought for an intestate’s estate by persons who had no grant when they issued the claim.

Rimer LJ, with whom Hooper LJ and Lord Neuberger MR agreed, dismissed the appellants’ appeal and allowed the respondent’s cross-appeal on costs to the stated extent.

1. Nullity. An executor derives title from the will, but an administrator derives title solely from a grant of administration. Accordingly, proceedings issued by a purported administrator before a grant are an incurable nullity. A later grant cannot validate the proceedings retrospectively. The court followed Ingall v Moran [1944] KB 160, which remained binding authority.
2. CPR Part 19.8(1). The reference to a claim means current, issued proceedings. The rule can permit directions for the future conduct of valid proceedings where a person with an interest has died without a personal representative. It can include a deceased person who was not formerly a party, as illustrated by Lean v Alston [1947] KB 467. It does not, however, correct a defect in the institution of proceedings or breathe life into proceedings that were null from their inception.
3. CPR Part 17.4. The observations in Haq v Singh and another [2001] EWCA Civ 957 concerning amendment did not assist. No amendment application was before the court and no limitation period had expired. Rimer LJ also questioned, without deciding, the correctness of the obiter suggestion that CPR Part 17.4(4) removed the effect of Ingall v Moran.
4. Costs. The judge erred in reducing the respondent’s recoverable costs for delay. There was no evidence that she had earlier known that the appellants lacked title, while the appellants had verified an untrue assertion that they were personal representatives. The appellants were ordered to pay the respondent’s wasted costs. If a like, properly constituted claim were issued within two months, earlier procedural steps and their costs could be treated as steps and costs in the new claim, subject to assessment of the wasted costs.

• Court of Appeal (Civil Division): dismissed the appellants’ appeal against strike-out and allowed the respondent’s cross-appeal on costs to the extent indicated.
• High Court of Justice, Chancery Division, Leeds District Registry: His Honour Judge Langan QC held that CPR Part 19.8(1) could not validate the null proceedings, struck out the claim, and made a partial costs order.