Kimathi & Ors v The Foreign & Commonwealth Office

A claim entered in the name of a person who had already died is a nullity. A group litigation order does not make a person a party before the date on which that person is entered on the group register. An administrator cannot bring a claim vested in a deceased person’s estate before obtaining the necessary grant of letters of administration. A foreign grant must be re-sealed in England before proceedings may validly be instituted. The court’s general case-management powers do not provide a discretion to cure a nullity, although procedural irregularities may be capable of correction where justice requires.

The defendant applied under CPR 3.4(2)(a) and/or (b) to strike out the claim of Ndimitu Wagachima, who had died before his name was entered on the group register in the Kenyan Emergency Group Litigation. The claimants argued that the relevant date was the earlier issue of the group claim form, when the deceased was alive, and alternatively that the defect could be cured under the court’s general case-management powers. They also relied on a Kenyan grant of administration obtained after entry on the register and later re-sealed in England.

The central issues were when TC11 became a party to the proceedings, whether the pleaded estate claim was valid before the grant and its re-sealing, and whether the court could cure a claim which was a nullity.

1. Application granted; claim struck out as a nullity. The established rule is that proceedings cannot be brought in the name of a deceased person. The relevant date was 14 March 2014, when TC11 was entered on the group register, not 28 March 2013, when the claim form for the initial claimants was issued.

2. Paragraphs 4, 5 and 16 of the group litigation order showed that the initial claimants were the 20 people named in the claim form and that further individuals became parties only on entry on the group register. TC11 therefore had no free-standing action between issue of the claim form and entry on the register. The court could not authorise the addition of a deceased person as a party.

3. Even if the claim were treated as an estate claim, an administrator could not sue under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 until a grant of letters of administration had been obtained. Where the grant was made in another jurisdiction, it could not support English proceedings before being re-sealed in England. The Kenyan grant was obtained and re-sealed after TC11’s entry on the register.

4. The court rejected the submission that the general powers under the Civil Procedure Rules 1998 supplied a discretion to cure a nullity. Meerza v Al Baho [2015] EWHC 3154 (Ch.) was distinguishable because it concerned a living claimant who lacked title to sue without letters of administration. If its reasoning extended to nullities, the judge declined to follow it. The authorities concerning later-arising causes of action concerned irregularity, not nullity, and did not establish a power to revive proceedings born dead. Adams v Ford [2012] EWCA Civ 544 reinforced that distinction.

5. In any event, the judge would not have exercised a discretion in favour of the claimants. The solicitors had not explained why the deceased claimant was entered without the protocol’s required certification, and the claimants’ interpretation of the group litigation order was a recent contention rather than a relied-on misconception.