Millburn-Snell v Evans

[2011] EWCA Civ 577; Court of Appeal; 25th May 2011

Before he died,  an intestate was in dispute, claiming an interest in property, but had not commenced proceedings.  After he died, without obtaining a grant of administration, his daughters brought proceedings against the property owner on their father's behalf.  The claim form stated:

"The Claimants are the personal representatives of [the intestate] who died on 7 March 2007 and are entitled to bring this claim on behalf of his estate."

Shortly before the trial. the property owner applied to strike out the proceedings, claiming that the claimants did not have title to bring the claim.The daughters admitted that they did not have title but sought permission to continue the claim under CPR 19.8(1), which provides:

19.8 (1)     Where a person who had an interest in a claim has died and that person has no personal representative the court may order—

(a)     the claim to proceed in the absence of a person representing the estate of the deceased; or

(b)     a person to be appointed to represent the estate of the deceased.

The Court of Appeal held that the claim was a nullity because the daughters had commenced proceedings without any title to do so.  CPR 19.8(1) was concerned only with giving directions for the future in proceedings that had been validly begun.

Lord Justice Rimer said, at paragraph [30]:

"In the typical case, that death will occur during their currency and will usually be of a party. More unusually, it may have preceded them. But on any basis it appears to me clear that it is no part of the function of Part 19.8(1) to cure nullities and give life to proceedings such as the present which were born dead and incapable of being revived. In ordinary circumstances there is no reason why anyone with a legitimate interest in bringing a claim on behalf of an intestate’s estate should not first obtain a grant of administration and so clothe himself with a title to sue. I am unable to interpret Part 19.8(1) as providing an optional alternative to such ordinary course."