Millburn -Snell & Ots v Evans

The issue raised by this appeal turns on CPR Part 19.8(1). On 2 June 2010, five days before the trial was due to start, the defendant issued an application to have the claim struck out on the ground that the claimants had no title to sue. Two days later the application came before His Honour Judge Langan QC, sitting as a High Court Judge in the Chancery Division, Leeds District Registry. The claimants confessed and sought to avoid – by admitting their lack of title but asking the judge to exercise the power they said he had under Part 19.8(1) to authorise them to continue the claim nonetheless.

The judge held that he did not have the suggested power. He struck the claim out and ordered the claimants to pay the defendant’s costs of the application, assessed at £4,750, and half of the balance of her costs of the claim, to be assessed. He recognised that the issue under Part 19.8(1) was not straightforward and gave permission to the claimants to appeal. He refused the defendant permission to appeal against his refusal to award her all her costs.

By their appeal, and if wrong on the main point, the claimants also challenge the judge’s order that they should have been ordered to pay as much as half of the defendant’s costs of the claim. It seemed to me unfair that the defendant should have to meet that case whilst being deprived of the right to argue that the judge should have awarded her all her costs. So on 11 October 2010 I permitted her to cross-appeal against the costs order. Tony Oakley, who did not appear below, represented the claimants (appellants). Joshua Winfield, who did, represented the defendant (respondent).

The claimants – Rebecca Millburn-Snell, Sarah Millburn and Catherine Millburn – are the daughters of the late Timothy Millburn, who died intestate on 7 March 2007. The defendant, Susan Evans, owns a property at Willow Farm, Thorpe Fendykes, near Wainfleet, Skegness (‘Willow Farm’).

On 8 March 2007, the day after Mr Millburn’s death, Bridge McFarland, solicitors who had previously been advancing an epistolary claim on his behalf against the defendant, wrote to her solicitors, Roythornes. Their letter included this: ‘Our client’s children are considering whether they wish to pursue the claim on behalf of their father at this stage, and we will advise you once a decision has been reached.’ On 17 April 2007 they wrote further that they were ‘instructed to act on behalf of the Personal Representatives of Mr Millburn deceased …’ in relation to certain land. Correspondence followed with Roythornes, who headed their letters ‘Mrs S.C. Evans -and- The Personal Representatives of Mr T.E.J. Millburn deceased’.

The correspondence was inconclusive. On 30 April 2008, in a formal letter of claim, Bridge McFarland gave the names of the three proposing claimants and said they were ‘the personal representatives’ of the late Mr Millburn. They outlined the proposed claim, one based on the assertion that Mr Millburn and the defendant were business partners. The next letter we have is Bridge McFarland’s of 17 July 2009, saying they had issued proceedings. In fact, the claim form was issued on 21 July 2009.

The claim form was accompanied by Particulars of Claim, with paragraph 1 saying this:

A Defence, served on 28 August 2009 and accompanied by seven appendices of documents, disputed the claim. As to paragraph 1 of the Particulars of Claim, it pleaded that:

On 28 May 2010, five clear working days before the trial, Roythornes sent a fax to Bridge McFarland, referring to the defendant’s non-admission of paragraph 1 of the Particulars of Claim (the claimants’ title to sue). They asked for production of a certified copy of the grant of probate (if any grant existed, it would in fact have been a grant of letters of administration). Bridge McFarland’s fax reply on the same day read thus:

That unimpressive reply cut no ice with the Roythornes, who on 2 June 2010 emailed Bridge McFarland to say that, with neither a will nor a grant, the claim was fatally flawed and the defendant was going to make an application to have it struck out. An application notice was issued that day. The ground was that the claimants were purporting to sue as the personal representatives of their late father, who had died intestate, yet had neither sought nor obtained a grant of letters of administration of his estate.

The issue before the judge arose under CPR Part 19, headed ‘Parties and Group Litigation’. Part 19.8 is of direct relevance and provides:

The application came before the judge on the Friday before the Monday on which the trial was due to start. He had, therefore, to make an immediate decision and expressed regret that time did not allow him to give the more careful consideration to the issue that he would have wished. His judgment is, however, typically clear, well reasoned and cogent. He said that, subject only to any help that the claimants might derive from the CPR, there is no doubt that the claim would have been struck out as a nullity. Nor would it have helped the claimants to obtain a grant of administration subsequent to the issue of the claim, since such a grant (unlike a grant of probate) would not have related back so as to validate the proceedings. The judge said that was supported by a host of cases and referred to Ingall v. Moran [1944] KB 160.

Turning to the CPR, he first rejected the suggestion that Part 17.4(4) (to which I shall come) provided any help to the claimants (nor does it appear that any point on it was pressed). He turned to Part 19.8 and pointed out that, over the years, the editors of Civil Procedure had evinced some uncertainty as to whether Part 19.8(1) provided any assistance to those in the position of the claimants. The 2000 edition suggested that it did not, whereas the 2009 and 2010 editions suggested that it did (as does the 2011 edition). The judge expressed his own conclusions as follows:

It is agreed that Judge Langan was correct that, subject only to any help that the claimants may derive from Part 19.8(1), their claim was a nullity that must be struck out and could not be retrospectively validated by a grant of letters of administration. That is because whereas an executor derives his title to sue from the will and not from the grant of probate -- and so can validly sue before obtaining a grant (although he will have to obtain it later in order to prove his title) -- an administrator derives his title to sue solely from the grant of administration (see Chetty v. Chetty [1916] 1 AC 603, at 608, 609, per Lord Parker of Waddington).

The latter point is well illustrated by this court’s decision in Ingall v. Moran [1944] KB 160. There the plaintiff issued his writ in September 1942 purportedly as the administrator of the intestate’s estate, but did not obtain a grant of administration until November 1942. This court, allowing the defendant’s appeal against the judgment the judge had entered against him, held that the grant did not retrospectively validate the writ, nor could the writ be the subject of an amendment validating the plaintiff’s claim to sue as administrator. The grant enabled the plaintiff to issue a new writ, but that was all. Scott LJ, at 165, described the original writ as ‘incurably a nullity. It was born dead, and could not be revived.’ Luxmoore LJ, at 169, said that the plaintiff’s action:

I regard it as clear law, at least since Ingall,that an action commenced by a claimant purportedly as an administrator, when the claimant does not have that capacity, is a nullity. That principle was recognised and applied by this court in Hilton v. Sutton Steam Laundry [1946] KB 65 (per Lord Greene MR, at 71) and Burns v. Campbell [1952] 1 KB 15 (per Denning LJ, at 17, and Hodson LJ, at 18). In Finnegan v. Cementation Co. Ltd [1953] 1 QB 688, Jenkins LJ said, at 700:

Before coming to Part 19.8(1), I should refer to what this court said about Ingall in Haq v. Singh and another [2001] EWCA Civ 957; [2001] 1 WLR 1594. The point there in issue arose under CPR Part 17.4, a rule made under the provisions of section 35 of the Limitation Act 1980 and which, by its own terms, expressly applies only to cases where a period of limitation has expired. Part 17.4 provides, so far as material, that:

In Haq a discharged bankrupt brought in 1993 a claim for damages, whereas the relevant cause of action had upon her bankruptcy vested and remained in her trustee. An amended defence served in 2000 asserted her lack of capacity to sue, whereupon she obtained an assignment from her trustee of the cause of action. The issue was whether the judge was right to permit her to amend to plead the assignment. He had so held on the basis that before the assignment she had no capacity to sue, whereas after the assignment she had the capacity to sue as the trustee’s assignee and therefore the case was within Part 17.4(4). This court allowed the defendants’ appeal, holding that since both before and after the assignment the claimant was suing in a personal capacity, her capacity had not altered and so she was not entitled to amend. Arden LJ, however, also expressed the obiter view, at paragraph [22], that:

For myself, I respectfully question the correctness of that assessment of the effect of Part 17.4(4). First, it is not easy to see how a claim which, as Ingall explained, is born dead and is a nullity can be given life by an amendment. Second, I am not confident that it was the Ingall principle pure and simple that was the ‘blot’ to which Singleton LJ was referring. He was, as I read Finnegan (see [1953] 1 QB 688, at 699), referring rather to the apparent injustice of the instant case (like Hilton, supra) in which a plaintiff who could have sued in her personal capacity under the Fatal Accidents Acts found herself barred by time from suing at all because she had mistakenly sued in time exclusively as administratrix when she had no capacity to do so. Third, as is pointed out in Executors, Administrators and Probate, Williams, Mortimer and Sunnucks, 19^th Edition, 2008, in Note 68 to paragraph 8-10, Part 17.4 applies only where a period of limitation has expired and:

Having expressed my doubts about those observations in Haq, I regard it as unnecessary to say more about them. The judge was, I consider, right to regard Haq as providing no guidance for the purposes of the application before him. First, at the time of the application, the claimants had not obtained a grant and so no amendment application was before him. Second, no limitation period had expired and Part 17.4(4) applies only where one has. Mr Oakley expressly disavowed any reliance on Haq.

Turning to Part 19.8(1), we were informed by Mr Oakley that, since the matter was before the judge, one of the appellants has obtained a grant of letters of administration of the intestate’s estate. He conceded that, had the appellants had such a grant at the date of the hearing below, Part 19.8(1) would have been inapplicable (it applies only where there is no relevant ‘personal representative’) and so the judge would have been compelled to strike the claim out, as he anyway did. I need say no more about this development than that I regard it as odd (i) that this court is now being asked to exercise a jurisdiction under Part 19.8(1) to reverse the judge’s order even though it is accepted that the current facts are fatal to its exercise; and (ii) that, in relying as they did on Part 19.8(1), the appellants should, so their argument runs, have been better off before the judge without a grant of representation than with one, even though its obtaining was in principle straightforward.

There are also further difficulties in the claimants’ path. The first is that Mr Oakley also conceded that the reference to a ‘claim’ in Part 19.8(1)(a) is a reference to a claim the subject of current proceedings. He was not giving much away there, since that appears to be the obvious sense of ‘the claim’ as there used. Part 19.8(1) is, I consider, clearly concerned only with (i) proceedings that have already been issued, and (ii) what orders for their further prosecution may be made in circumstances in which the conditions described in its opening words are satisfied.

If, however, ‘claim’ in Part 19.8(1)(a) means ‘issued proceedings’, one might think that the same word must have a like meaning in its prior, and first, use in Part 19.8(1). If so, the appellants face a problem in fitting the facts of the present case comfortably into the rule since on one (perhaps not unreasonable) view the intestate, Timothy Millburn, could not during his life have had any ‘interest in [the current proceedings]’ because, by the time of their issue, he was dead. The most that might be said was that during his life he had an interest in a cause of action that, following his death, became the subject of the claim that the claimants issued.

Mr Oakley’s submission was that he did have an interest of such a nature and that it was a sufficient ‘interest in a claim’ within the meaning of the opening words of Part 19.8(1) to mean that he was ‘a person’ of the nature there described. If he was right about that, it followed, he said, that the case fell within the four corners of Part 19.8(1) and the judge had jurisdiction to make an order for its further prosecution. The type of order that Mr Oakley suggested the judge could and should have made was one appointing the appellants to represent the estate of the intestate (see Part 19.8(1)(b)).

In developing that submission Mr Oakley pointed out that the words ‘a person who had an interest in a claim’ at the beginning of Part 19.8(1) were plainly chosen carefully and he said that they deliberately cast the net wider than would, for example, the words ‘a person who was a party to the proceedings’. If, he said, the intention of Part 19.8(1) was simply to provide a rule dealing with the court’s jurisdiction on the death of a party, it could and would easily have said so, whereas it did not. In support of his submission that the words used bore the wider meaning for which he contended, Mr Oakley pointed out (and Mr Winfield agreed) that Part 19.8(1) replaced the former RSC Ord 15, r. 15(1), which had (in essentially similar terms) itself replaced the earlier RSC Ord 16, r. 46. The latter read, so far as material:

That rule fell to be considered by this court in Lean v. Alston [1947] KB 467, upon which Mr Oakley placed reliance. The plaintiff, Lean, was a pillion rider on a motorcycle driven by Hawkins. The motorcycle collided with a car driven by the defendant, Alston. Lean was injured and Hawkins was killed. Hawkins died intestate and his widow refused to take out a grant of administration. Lean sued Alston, who wanted to serve a third party notice on a representative of Hawkins’s estate. Hayden agreed to act as such a representative if indemnified as to costs. The Master ordered him to be so appointed and gave leave to Alston to serve the third party notice on him. On Lean’s appeal, Denning J reversed that order. This court allowed Alston’s appeal and restored the Master’s order.

Lean’s argument was that Ord 16, r. 46 had no application because as between Alston and Hawkins’s widow or his estate there was no cause or matter pending: in other words, the rule only enabled the appointment of a representative of a party who had died. That argument did not prevail. Scott LJ pointed out that the rule was but one application of an inherent power of the court exercised by the Court of Chancery and expressed in section 44 of the Chancery Procedure Act 1852 by which, as he said at 471, ‘the Court of Chancery and its successor, the Chancery Division, always had the power to appoint a person to represent any particular interest in any proceeding where it thought right to make that appointment.’ Morton LJ added this, at 474:

In agreement with both counsel, I accept that Part 19.8(1) is the modern, more simply expressed, successor of the rule considered in Lean. In a case today raising facts similar to those in Lean, I am prepared to assume that it would be within the court’s jurisdiction under Part 19.8(1)(b) to make the type of order made in Lean (although it may be that it could alternatively be made under Part 19.8(2), the modern successor to the former rule RSC Ord 15, r.6A which dated from 1970).I am therefore prepared to accept that the phrase ‘a person who had an interest in a claim has died’ in Part 19.8(1) does not refer exclusively to a deceased person who was formerly a party to the claim and to that extent I would agree with Mr Oakley’s submission. Nor did I understand Mr Winfield to argue otherwise. He too accepted that the purpose of the quoted words was to enable the joinder during the currency of proceedings of someone to represent the interest of a deceased person who had an interest in the claim, but who may not have been a party to it.

Accepting all this, where I have difficulty is in seeing how any of it helps the appellants. In my judgment the flaw in their case is exposed by the decision in Ingall. What that case decided, by a decision binding upon us, is that a claim purportedly brought on behalf of an intestate’s estate by a claimant without a grant is an incurable nullity. Subject only to whatever Part 19.8(1) may empower, it follows that the claim the appellants issued was equally an incurable nullity. The logic of Mr Oakley’s submission is however that the force of Part 19.8(1) is to confer a jurisdiction upon the court to turn such a nullity into valid proceedings which may be pursued to judgment.

I am unable to accept that and, in agreement with the judge, consider that Part 19.8(1) has no application to the present case. The appellants’ invocation of Part 19.8(1) was responsive to the defendant’s strike out application. Logically, however, if they are right about Part 19.8(1), they could (indeed should) promptly after issuing their claim form have applied to the court for an order that the nullity they had thereby conceived should have life breathed into it by way of an order that they be appointed to represent the estate of the deceased intestate and the claim permitted to proceed to trial. The reason that any such application should and would have failed is because Part 19.8(1) does not, in my view, have any role to play in the way of correcting deficiencies in the manner in which proceedings have been instituted. It certainly says nothing express to that effect and I see no reason to read it as implicitly creating any such jurisdiction. It is, I consider, concerned exclusively with giving directions for the forward prosecution towards trial of validly instituted proceedings when a relevant death requires their giving. 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. I would dismiss the appeal on the Part 19.8(1) issue.

A further ground of appeal was that, if the appellants were wrong about the application of Part 19.8(1), the defendant had acquiesced in their pursuit of the claim. Mr Oakley realistically conceded however that, unless the defendant could be shown to have known of the appellants’ lack of title to sue at an early stage in the proceedings -- which he admitted they could not -- the argument was difficult; and he gracefully forbore to press it. In my judgment, there was nothing in the argument, since there is no basis upon which the judge could have been satisfied on the facts that there was any acquiescence. I would dismiss this ground of appeal too.

I come finally to the question of costs. The judge’s costs judgment reflected that he was influenced in his decision to award the defendant merely half her costs of the claim because the guidance in the White Book was to the effect that strike out applications should be made promptly, whereas the defendant had allowed the litigation ‘to trundle on to the eve of trial’ and made the application too late. His view was therefore that, because of the delay, she should suffer a discount ‘on the heavy side’ to her recoverable costs.

In challenging that exercise of the discretion, Mr Winfield submitted that (i) the judge appeared to have ignored that the claim was a nullity (he pointed out that in Ingall this court awarded the successful defendant his costs of the appeal and below); (ii) the claimants had asserted their title to sue as personal representatives in paragraph 1 of the Particulars of Claim, which they had supported by a statement of truth; (iii) whilst the defendant had declined to admit that assertion, the reality is that it is only in a tiny minority of cases that it will turn out that the claimants do not have the title they assert; (iv) in the ordinary course the primary focus of the defendant’s attention in the lead up to trial is going to be on the substantive issues raised by the statements of case rather than on the claimant’s claimed title to sue; and (v) there was no basis on which the judge could criticise the defendant for not making the application earlier since there is no suggestion that the defendant knew of the flaw in the claimants’ title any earlier.

I regard these points as collectively compelling. In particular, I find it surprising that claimants who are so imprudent as to lend their names to an untruthful statement of claimed truth that they had a title to sue when they did not should be heard to criticise a misled defendant for not exposing their own untruth at an earlier stage -- criticism advanced, moreover, without any evidence suggesting that the defendant was in a position to do so at any such stage. In my judgment, the judge was in error in criticising the defendant for not making the application earlier and that error undermined the basis on which he exercised his discretion as to costs.

I consider, therefore, that it is open to this court to exercise afresh the decision as to the incidence of the costs below. Since I consider that the claim is one that should never have been brought, and ought to remain struck out as a nullity, I regard the fair order to make as to the costs of the claim (other than that in respect of the application costs, which will remain undisturbed) is that the claimants should pay all the defendant’s costs of the claim so far as they have been wasted. I put it like that because during the argument we discussed with counsel our provisional thoughts that it would be unsatisfactory simply to order the claimants to pay all the defendant’s costs of the claim. That is because it is not just possible, but probable, that now that one of the appellants has obtained a grant, a properly constituted claim will be brought against the defendant. If so, such claim could, when issued, and subject to appropriate directions being given, be ready for trial almost straight away. That is because all the steps taken in the old claim could, were we so to direct, be treated as steps in the new claim; and the costs of those steps have already been incurred. It would, I consider, be absurd if the commencement of a new claim should require the parties solemnly to start again from scratch in a stately progress towards a trial and incur a repeat set of costs in doing so. Having said that, if a new claim is to be made and such a direction is given, it is of course inevitable that (quite apart from the trial costs) further costs will still be incurred in it.

I would therefore propose an order along these lines. If within two months the (or one or more of the) appellants issue a like claim form against the defendant, all steps that were taken in the old claim subsequent to its issue shall be deemed to be steps taken in the new claim and the costs of such steps shall (subject to the wasted costs provision to which I shall come) similarly be deemed to be incurred in the new claim. The costs of the new claim will be costs in the claim, but the appellants must pay the defendant all costs incurred by her that have been wasted by reason that the first claim was a nullity. The assessment of any such wasted costs will necessarily have to be the subject of a detailed assessment following the trial of any new claim or pursuant to any further order in the meantime. If no new claim is commenced within two months, the appellants will simply be ordered to pay the defendant her costs of the struck out claim.

I recognise that these directions are expressed in general terms but hope that their spirit is sufficiently clear. Their detailed working out will require some careful drafting, to which I would invite counsel to turn their minds.

I would dismiss the appellants’ appeal, allow the cross-appeal to the extent indicated and make the further directions also indicated.

I agree.

I also agree.

Arguments such as that which the defendant successfully raised before the judge in this case are never very attractive, and one of the purposes of the CPR is to rid the law of unnecessary technical procedural rules which can operate as traps for litigants. However, whatever one’s views of the value of the principle applied and approved in Ingall v. Moran [1944] KB 160, it is a well-established principle, and, once one concludes that it has not been abrogated by CPR Part 19.8, it was the judge’s duty to follow it, as it is the duty of this court, at least in the absence of any powerful contrary reason. The need for consistency, clarity and adherence to the established principles is much greater than the avoidance of a technical rule, particularly one which has a discernible purpose, namely to ensure that an action is brought by an appropriate claimant.

One can well understand how the judge reached his decision on costs, given the technical nature of the point raised by the defendant and the late point at which it was raised. However, as Rimer LJ has explained, closer analysis shows that neither reason justified depriving the successful defendant of her costs. Furthermore, assuming there is no reason preventing one or more of the claimants bringing fresh proceedings, an order along the lines proposed in para 36 should ensure that the costs involved are much smaller than might have been envisaged by the judge.