JAMES ANTHONY POWER v BERNARD HASTIE & COMPANY LIMITED

A beneficiary’s right under a provisional damages order to seek further damages for a specified disease or deterioration is a continuing cause of action. On the beneficiary’s death, that right passes to the estate under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934, unless the order expressly makes the right personal. A provisional damages order stating that an application may be made without time limit is controlling, even if an appended statement of facts refers to applications during the claimant’s lifetime. The executor may therefore be substituted under CPR 19.2(4). Any time limit in a provisional damages order may, in principle, be extended retrospectively under CPR 3.1(2)(a).

Mr Hammacott obtained provisional damages in 1993 after developing asbestos-related pleural plaques and early asbestosis. The order permitted an application for further damages, without time limit, if specified serious deterioration occurred. Mr Hammacott later died, allegedly from asbestos-related disease. His nephew and executor, James Power, applied to be substituted as claimant so that the estate could pursue further damages.

The defendants argued that the original cause of action had merged in the judgment, that the right to further damages was personal to Mr Hammacott, and that it had not survived his death. The application required determination of the statutory effect of the provisional damages regime, the order’s proper construction, survival of the right under the Law Reform (Miscellaneous Provisions) Act 1934, and the applicable substitution rules.

1. Statutory framework. Section 32A of the Senior Courts Act 1981 and CPR 41.1 permitted the injured person to seek further damages, but did not prevent that right being transferred to an executor who had otherwise acquired it. The statutory scheme also showed that damages could be paid to an estate.
2. Construction of the order. The 1993 order stated that the claimant could apply without time limit. That wording controlled. The appended statement that the claimant could apply during his life did not impose a personal or temporal restriction. The order did not say that only Mr Hammacott personally could apply.
3. Time. No extension was required because the order imposed no time limit. Alternatively, CPR 3.1(2)(a) permitted retrospective extension of a time limit in a provisional damages order. Blythe v Ministry of Defence [2013] All ER (D) 326 was applied.
4. Survival and merger. The original cause of action had merged in the judgment, as explained in King v Hoare 153 ER 206 (1844) 13 M&W 494. However, the order created a continuing residual right to claim further damages when its conditions were met. That right was itself a cause of action and passed to the estate under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. Guilfoyle v North Middlesex University Hospitals NHS Trust was approved as correctly decided.
5. Substitution. The applicant’s interest had passed to him as executor, and it was desirable to substitute him so the remaining dispute could be resolved. CPR 19.2(4) was satisfied. The applicant was substituted as claimant. The court expressed only provisional, non-binding views on any separate Fatal Accidents Act claim.