Amirtharaja & Anor v White & Anor

A claim issued in the name of a deceased person is a nullity, but that does not invalidate a claim separately issued by other claimants with proper authority. An erroneous inclusion of a deceased claimant does not, without more, justify retrospectively striking out the entire claim for abuse of process. Such relief is exceptional and requires conduct sufficiently serious and culpable to warrant disposing of the claim without hearing the substantive appeal. Issues concerning misleading impressions at trial, delay in correcting the record and solicitor culpability should ordinarily be considered with the merits. A deceased party may be removed from an appeal under Civil Procedure Rules 1998, rule 19.2(3).

The defendants appealed against a County Court order declaring that the claimants were entitled to registration of disputed land and directing alteration of the register. One of the three named claimants had died before the claim was issued, although the two surviving registered proprietors were the proper legal owners. The error was not identified until after judgment, shortly before the appeal hearing.

The defendants applied to strike out the claim for alleged abuse of process. The surviving claimants applied to remove the deceased claimant from the appeal. The central issues were whether the claim was a nullity, whether the error justified striking out the claim retrospectively, and how the deceased claimant’s status should be corrected.

1. Applications and disposition. The application to strike out the claim was rejected. Permission was granted to amend the grounds of appeal to raise arguments concerning the deceased claimant’s involvement, including abuse of process. The deceased claimant was removed as a respondent to the appeal.
2. Validity of the claim. Per Fancourt J, a claim brought by a deceased person is a nullity, as established by Kimathi v Foreign & Commonwealth Office [2017] 1 WLR 1081 at [5]. That principle does not mean that a claim also issued by other claimants with their authority is invalid. Adams v Ford [2012] 1 WLR 3211 at [36], together with Kimathi v Foreign & Commonwealth Office at [19], supported that distinction. The claim issued by the two surviving registered proprietors was therefore valid.
3. Abuse of process. The solicitor’s conduct was, at best, grossly negligent, and the respondents’ failure to correct the mistake and the quality of the explanation were proper criticisms. However, there was no apparent benefit in deliberately adding the deceased claimant, and the alleged misconduct was not so egregious and culpable as to justify the exceptional step of striking out the whole claim retrospectively before hearing the appeal on its merits. Any relevant prejudice, misleading impression at trial or failure to correct the record could be addressed in the substantive appeal.
4. Jurisdiction and party correction. The court did not need to decide whether the High Court, apart from its appellate powers, had jurisdiction at that stage to amend the lower court order or strike out the claim. Removal of the deceased claimant from the appeal was ordered under rule 19.2(3) of the Civil Procedure Rules 1998. Further amendment to the County Court proceedings was deferred for consideration after the appeal hearing.

• High Court (Chancery Division): Appeal-related applications determined. The application to strike out the claim was rejected; the deceased claimant was removed from the appeal; and amendment of the grounds was permitted.
• County Court at Southend: HHJ Holmes ordered on 4 October 2019 that the claimants were entitled to registration of the disputed land and directed alteration of the register.