Flavio de Carvalho Pinto Viegas & Ors v The Estate of José Luis Cutrale & Anor

Limitation (paragraph 1 of the draft order).

Claims issued on behalf of persons who were deceased (paragraph 2 of the draft order).

Whether English grants of representation were required for claims brought by representatives of the estates:

Claims which were brought without the informed consent of the Claimant or without the Claimant's solicitors having the authority to issue and pursue proceedings on their behalf (paragraph 6 of the draft order) and in particular (subparagraphs 6.3 and 6.4 of the draft order):

Amendments to the Viegas Claim in reliance on the grounds dismissed in Rawet v Daimler AG [2022] 1 WLR 5105 (paragraph 8 of the draft order). As referred to below these grounds were not argued before this Court but the Defendants wish to reserve their right to pursue the issues on appeal.

17.1— Amendments to statements of case

17.1

CPR 19

19.2

under CPR r.17.1(1) the Original Claimants were not permitted to amend the Claim Form to add the claims by the Additional Claimants. It was said by the Defendants in their evidence that CPR r.17.1 may have permitted the Original Claimants to amend their statements of case before they were served on the Defendants. However, the amendments purporting to add the Additional Claimants were not amendments by the Original Claimants of their statements of case, but amendments seeking to join the Additional Claimants as new parties to the claim.

in the alternative, contrary to CPR r.19.4(4) the Additional Claimants did not file with the court their consents in writing to be added as claimants.

“17.2(1) If a party has amended their statement of case where permission of the court was not required, the court may disallow the amendment.”

“An application under this rule is appropriate if the amendment challenged is one which, if permission to amend it had been necessary, that permission would not have been granted.”

“[19] …whether it was arguable that the relevant limitation period had expired when the amendments and re-amendments were made …”

“[38] If a defendant can show that it is reasonably arguable that the new claim introduced by the amendments is statute barred, then leave to amend should not be given. Leave to amend will be given if the claimant can show that the defendant does not have a reasonably arguable limitation defence”.

For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—

in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

in the case of any other new claim, on the same date as the original action.” [emphasis added]

In this section a new claim means any claim by way of set-off or counterclaim, and

any claim involving either—

the addition or substitution of a new cause of action; or

the addition or substitution of a new party;

and “third party proceedings” means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.” [emphasis added]

Except as provided by section 33 of this Act or by rules of court, neither the High Court nor [ the county] court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.

For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.” [Emphasis added]

Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.

The conditions referred to in subsection (4) above are the following—

in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and

in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.”

“[63] The starting point for consideration of this issue is the Court of Appeal’s decision in Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409. In that case the Welsh Development Agency (“WDA”) engaged engineers to design the sub-structure of twelve factory units. Subsidence later occurred in the floors of two units. WDA commenced proceedings in negligence against the engineers for negligent design of the floor units. Two years after commencing proceedings WDA applied for leave to amend their statement of claim (i) to add a claim in respect of floor settlement in the other ten factory units and (ii) to add separate claims for negligent mis-statement. The official referee allowed the amendments in respect of the other ten factory units, holding that this new claim arose out of similar facts. He refused leave to add the new claims for negligent mis-statement. The official referee held that, having regard to section 14A of the 1980 Act, it was unclear whether the claims for negligent mis-statement were barred by limitation.

[64]. The Court of Appeal dismissed appeals by both parties and upheld the official referee’s judgment. In particular, the Court of Appeal endorsed his approach to new claims which do not arise out of similar facts. The Court of Appeal held that where it was arguable that a new claim was statute barred, leave to amend should not be given. The plaintiff should not gain the benefit of relation back under section 35 (1) of the 1980 Act. On the other hand if the plaintiff could show that the defendant did not have a reasonably arguable limitation defence which would be prejudiced by the operation of section 35 (1) of the 1980 Act, then the court may give leave to amend. See the judgment of the court at 1425 G-H.

[65]. WDA was a case which proceeded under the old Rules of the Supreme Court, which were swept away in April 1999. Nevertheless the provisions of the former RSC Order 20 rule 5 are, for present purposes, substantially the same as CPR rule 17.4: see Part 1 above. Both the old rules and the new rules are intended to implement section 35 of the 1980 Act. The guidance given by the Court of Appeal in WDA remains effective, as is correctly stated in paragraph 17.4.2 of the commentary in Civil Procedure (the White Book).” [emphasis added]

If a claimant seeks to raise a new claim by amendment and the defendant objects that it is barred by limitation, the court must decide how to proceed. There are two options. First the court could deal with the matter as a conventional amendment application. Alternatively, the court could direct that the question of limitation be determined as a preliminary issue.

If, as is usually the case, the court adopts the first option, it will not descend into factual issues which are seriously in dispute. The court will limit itself to considering whether the defendant has a “reasonably arguable case on limitation”: see WDA at 1425 H. If so, the court will refuse the claimant’s application. If not, the court will have a discretion to allow the amendment if it sees fit in all the circumstances.

If the court refuses permission to amend, the claimant’s remedy will be to issue separate proceedings in respect of the new claim. The defendant can plead its limitation defence. The limitation issue will then be determined at trial and the defendant will not be prejudiced by the operation of relation back under section 35 (1) of the 1980 Act.

This leads on to a separate and important point. If a claimant applies for permission to amend and the amendment arguably adds a new claim which is statute barred, then the claimant should take steps to protect itself. The obvious step is to issue separate proceedings in respect of the new claim. This will have the advantage of stopping the limitation clock on the date of the new claim form. If permission to amend is granted, then the second action can be allowed to lapse. If permission to amend is refused, the claimant can pursue his new claim in the second action. The two actions will probably be consolidated and the question of limitation can be determined at trial.” [emphasis added]

“The Court of Appeal held that where it was arguable that a new claim was statute barred, leave to amend should not be given. The plaintiff should not gain the benefit of relation back under section 35 (1) of the 1980 Act. On the other hand if the plaintiff could show that the defendant did not have a reasonably arguable limitation defence which would be prejudiced by the operation of section 35 (1) of the 1980 Act, then the court may give leave to amend.” (Chandra at [64])

“In such a case, leave to amend by adding a new claim should not be given unless the plaintiff can show that the defendant does not have a reasonably arguable case on limitation which will be prejudiced by the new claim, or can bring himself within R.S.C., Ord. 20, r. 5.” [emphasis added]

“… The defendant can plead its limitation defence. The limitation issue will then be determined at trial and the defendant will not be prejudiced by the operation of relation back under section 35 (1) of the 1980 Act.” [68] [emphasis added]

The first part of the appeal arises out of CTC’s unsuccessful application to disallow the amendments of 17/18 March 2020. Ms Parkin submits that it is reasonably arguable that the relevant limitation period had expired by the time the amendments were made. She contends that the judge applied the wrong test in law and that, if he had applied the right test, he would have been bound to hold that the 15 year limitation period identified in s.14B of the Limitation Act 1980 had, at least arguably, expired.

Mr Hargreaves’ response was a refined version of the argument which found favour with the judge. He said that, on a proper analysis of the applicable law, what he described as the “constrained case” proposed by BDW (in other words, making no allegations about drawings issued before 18 March 2005) provided a complete answer to Ms Parkin’s application.” [emphasis added]

“[34] Although it was not referred to by the judge, the starting point in considering the interplay between limitation arguments and amendments is Welsh Development Agency v Redpath Dorman Long Limited [1994] 1 WLR 1409, where the Court of Appeal upheld the earlier decision of the official referee refusing the proposed amendments concerned with negligent mis-statements. In an important passage, Glidewell LJ said at 1425G-H:

“We now wish to make it clear that, though the test applied in Leicester Wholesale Fruit Market Ltd. v. Grundy [1988] 1 W.L.R. 107 was the correct test in the circumstances of that case, in which section 35(1) gave the plaintiff no advantage, it was unnecessary for the decision in that case to disagree with what Purchas L.J. said in Grimsby Cold Stores Ltd. v. Jenkins & Potter (1985) 1 Const L.J. 362, 370. Our view is that Judge Hicks was correct in concluding that where section 35(1) does, or may well, give the plaintiff an advantage a different test, namely that enunciated by Purchas L.J. in the Grimsby Cold Stores case, should be applied. In such a case, leave to amend by adding a new claim should not be given unless the plaintiff can show that the defendant does not have a reasonably arguable case on limitation which will be prejudiced by the new claim, or can bring himself within R.S.C. Ord. 20, r. 5. We should add that the court in Holland v. Yates Building Co. Ltd., The Times, 5 December 1989, also relied on the judgment of Glidewell L.J. in the Leicester Wholesale Fruit Market case as being of general application and not limited to its own particular facts.”

[35] WDA was decided under RSC Order 20 rule 5. But there was no substantive difference between the old rule and the CPR. As Jackson LJ pointed out in Chandra v Brooke North (A Firm) and Anr [2013] EWCA Civ 1559, the guidance in WDA is still directly applicable to the CPR…”. [emphasis added]

“I consider that the right approach is that explained in WDA and subsequently reiterated by Jackson LJ in Chandra. If a defendant can show that it is reasonably arguable that the new claim introduced by the amendments is statute barred, then leave to amend should not be given. Leave to amend will be given if the claimant can show that the defendant does not have a reasonably arguable limitation defence. In my view, precisely the same test applies in a situation, such as the present one, where s.14B is invoked.” [emphasis added]

“For these reasons, therefore, it seems to me that it is reasonably arguable that the claims against CTC in relation to Feltham were new claims made after the limitation period identified in s.14B had expired. Applying the test in WDA and Chandra, I consider that the judge erred in concluding otherwise, and permission to make the amendments of 17/18 March 2020 should have been refused. If my Lord and my Lady agree with that conclusion, the result of the first part of the appeal is that, insofar as they affect CTC, the amendments of 17 and 18 March 2020 must be disallowed.”

“The first issue for the judge to decide, which was common to both applications, was whether it was arguable that the relevant limitation period had expired when the amendments and re-amendments were made on 17/18 March 2020…”

“17 In many instances there will be a dispute as to whether the limitation period has expired at the date of the attempted amendment. It was said by G4S, and accepted by the claimants, that where there was such a dispute which affected an amendment (i.e. it is reasonably arguable that the claim is statute-barred), and the amendments would not otherwise fall within the provisions allowing a post-limitation amendment, then the usual course was for the court to refuse permission to amend and leave the claimant to issue a fresh claim form. This appears from Chandra v Brooke North [2013] EWCA Civ 1559 at [66]–[69]…

19 It is therefore necessary to consider whether there is, as at any relevant date, an arguable limitation defence. G4S takes a limitation point in its Defence, saying that the limitation period started running in May 2013 when Mr Grayling made his first announcement. That is when loss accrued so far as diminution in value of the shares is concerned. It is not suggested that the claimants can have known about the wrongdoing before then, but that is the first date on which it can be said that the claimants can have sufficient knowledge that they had a claim. That, G4S would say, is at least arguable, with the effect that there was an arguable limitation defence as at 11 July 2019, which is when the first amendments were made. Alternatively there is a good arguable case that the limitation period started running on 11 July 2013 when the second announcement was made. G4S say that that, again, puts all the amendments outside the limitation period.

21 It is not for me actually to decide the limitation point in this case, or even to go into it in depth. The question which matters is whether it is arguable that the limitation period had expired by 11 July 2019, or to put it another way whether it had started running by 11 July 2013. It seems to me clear that that is arguable…

22 …It cannot be said that the section 32 clock clearly did not start running until the end of August 2013 at the earliest. It is arguable (it is unnecessary to go further) that it started running on 11 July 2013, if not earlier. Mr Onslow’s argument may be right, and it may be wrong, but it is arguable….”. [emphasis added]

“…If I am wrong in my conclusion that a party cannot add itself under CPR r 17.1 at all, then Mr Rabinowitz can challenge the additions as being made outside an arguable limitation period (Chandra, above). That point is in my view clearly correct…”

“25…neither Chandra nor Blue Tropic (nor any other authority of which I am aware) addresses the specific questions which may arise in the context of a representative action constituted as the present one. The Chandra approach is ideally suited to a claim by an individual claimant against an individual defendant where refusing the application and leaving the claimant to protect himself by issuing separate proceedings is straightforward. Arguably different considerations apply in a case such as the present which is the vehicle for 27,000 individual claims each of which is dependent upon proof of actionable damage specific to that claim. At least the theoretical possibility exists, therefore, of time running from different times for different claims and claimants…”

“17.4.1 The term “limitation period” is defined in the Glossary (see Vol.1, Section E). Section 35 of the Limitation Act 1980 limits the court’s power to allow amendments after a relevant limitation period has expired unless the application is to amend in one of the following ways:

raising, by amendment, an original set off or counterclaim;

raising a new claim arising out of the same facts, or substantially the same facts as an existing claim;

correcting the name of a party;

altering the capacity in which a party is joined.

…” [emphasis added]

“Where it is reasonably arguable that the relevant limitation period has expired before an amendment is made, the burden is on the applicant to show that the amendment falls within the provisions of rr.17.4 or 19.6. A new claim under s.35(3) is not made until the statement of case is actually amended, which, by definition, cannot be earlier than the date upon which permission to make specific amendments is given. Unless the case falls within one of the exceptions, such permission cannot be given after the relevant limitation period has expired. It is immaterial that the limitation period had not expired on the date the application to amend was made (Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 W.L.R. 1409; [1994] 4 All E.R. 10, CA) or on the date upon which the court adjourned a hearing on the basis that the specific amendments sought would be revised and brought back to court later for approval (Bajwa v Furini [2004] EWCA Civ 412).

Where there is a dispute as to whether or not a new claim sought to be raised by amendment is statute-barred, the claimant must prove (i) that the defendant’s limitation defence is not reasonably arguable, or (ii) that, in any case, the amendment falls within the provisions of rr.17.4 or 19.6. If they cannot establish either (i) or (ii) permission to amend should be refused leaving the claimant to bring fresh proceedings on the new claim (Chandra v Brooke North [2013] EWCA Civ 1559; [2014] T.C.L.R. 1, Ballinger v Mercer Ltd [2014] EWCA Civ 996; [2014] 1 W.L.R. 3597).

In Cameron Taylor Consulting Ltd v BDW Trading Ltd [2022] EWCA Civ 31, the Court of Appeal considered both rr.17.4 and 19.6 (adding or substituting parties post limitation) and iterated that common to both was a need to decide whether it was arguable that limitation had expired ([19]).

“If a defendant can show that it is reasonably arguable that the new claim introduced by the amendments is statute barred, then leave to amend should not be given. Leave to amend will be given if the claimant can show that the defendant does not have a reasonably arguable limitation defence” per [38].” [emphasis added]

Except as provided by section 33 of this Act or by rules of court, neither the High Court nor [ the county] court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.” [emphasis added]

“if the plaintiff could show that the defendant did not have a reasonably arguable limitation defence which would be prejudiced by the operation of section 35 (1) of the 1980 Act, then the court may give leave to amend”. [64]

“…we reserve our clients’ rights to bring an application for strike out in relation to the Claimants that were added to claim CL-2019-000603 by way of purported amendment to the claim form on 22 November 2019 and 23 January 2020, including on the basis of the judgment in Various Claimants v G4S [2021] EWHC 524 (Ch).” [emphasis added]

109 Claimants were purportedly added to the Viegas claim by amendments under CPR r.17.1 on 23 January 2020. The Defendants submit that: (i) it was not permissible to add these Claimants by way of amendment under CPR r.17.1 and the Defendants reserve the right to apply to strike out these claims in the event that the present application under CPR Part 11 is unsuccessful (see Various Claimants v G4S [2021] 4 WLR 46);

[…]

The Defendants also do not accept that the Viegas claim is properly pursued on behalf of Claimants added or altered by purported amendments under CPR r.17.1 on 22 November 2019, and reserve the right to strike out such claims in the event that the present application is unsuccessful…”.

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.”

“[24]…The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.”

there is nothing in the CPR to suspend the running of time under CPR 17.2(1) whilst an application for a jurisdictional stay is pending;

any challenge in relation to an arguable limitation defence would not have involved taking a step in relation to the pursuit of the substance of the claims;

an application under CPR 17.2(1) can be made expressly without prejudice to any such stay application so as to avoid any unintended submission to jurisdiction: e.g. PJSC Bank Finance and Credit v Zhevago [2021] EWHC 2522 (Ch), §§57-69. Provided that is understood and agreed by the parties and recorded by the court there would not be a problem;

the Defendants did not articulate to the Claimants the precise grounds upon which a strike out might be taken but left the application for two years;

the Court should weigh the severity of the remedy sought by the Defendants with the dilatory and tactical way it has been pursued. The Claimants have been prejudiced by the Defendants holding back this application for almost two years. A further claim form could have been issued much sooner.

relief is not necessary because although on its face CPR 17.2 (2) requires an application to be made within 14 days it does not address the circumstances in which an application challenging jurisdiction under CPR Part 11 has been made and it cannot have been intended that CPR 17.2 would deprive a party of its right to challenge jurisdiction or that it would apply only to parties which do not raise jurisdiction challenges. It was therefore submitted that implicitly CPR 17.2 must allow for jurisdiction challenges.

If relief is necessary and is not granted, there would be significant prejudice to the Defendants because they would be deprived of the benefits of a limitation defence: see, by analogy, G4S at [86]:

There is no prejudice to the Claimants- the Defendants reserved their rights by letter dated 7 June 2021 and there was no objection raised.

“A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on them.”

“To ask the court to strike out the claim on the basis that it has no real prospect of success or on the basis that the claim form discloses no reasonable ground for bringing the claim is to ask the court to adjudicate the substance of the claim. There is more than a risk that this will be seen as accepting and submitting to the merits jurisdiction of the court. A cautious view, but a sensible one, would be that such an application should not be made until the procedure and the CPR Part 11 has come to an end…” [emphasis added]

“…I do not accept the argument that the Fifth Defendant is making the wrong application; the authorities, including the excerpts from Briggs and Dicey cited by Mr Abraham in his second witness statement, make clear the very great degree of caution which a party who is challenging jurisdiction must exercise. The point appears to be open; neither party referred me to authority which dealt with this point in terms. It certainly seems possible that an argument that challenging the default judgment in partnership with a jurisdictional challenge might be said to amount to a submission to the jurisdiction in circumstances where the authorities tend to suggest that taking any step in relation to the merits of the claim can amount to a submission (see Global Mutimedia International v ARA Media Services [2006] EWHC 3612, [2007] 1 All E.R. (Comm) 1160 and Deutsche Bank AG London Branch v Petromena ASA [2015] EWCA Civ 226 [2015] 1 WLR 4225). Accordingly it seems to me that the Fifth Defendant was entitled to form the view that it was unsafe to apply to set aside the default judgment now and the course of action taken cannot fairly be described as wrong. On the contrary, challenging jurisdiction was logically the first step, whether or not it might have been combined with a very cautiously worded challenge to the default judgment.” [emphasis added]

“In my judgment the test derived from Rein v Stein applied in Williams & Glyn’s and Rubin that there will be a submission to the jurisdiction if the step is “only necessary or only useful if the objection has been waived” and the test formulated by Patten J in SMAY Investments that the conduct must be a wholly unequivocal submission to the jurisdiction are not different tests but the same test. The latter is just a more succinct and modern statement of the same test…”.

“The issue of an application to strike out the claim at the same time as an application to challenge the jurisdiction cannot conceivably be described as “only necessary or only useful” if the objection to the jurisdiction made in the same application and is clearly not being abandoned. Putting it another way, where both applications are being made, the fifth defendant's conduct is at best equivocal. Whilst he could have made it absolutely clear by expressly stating in the application notice that the application to strike out was without prejudice to his challenge to the jurisdiction, the fact that he did not do so does not make his conduct wholly unequivocal. Andrew Baker J was correct to reject the similar argument which Mr Samek QC ran in Tsarova . Furthermore, the suggestion that somehow the fifth defendant had submitted to the jurisdiction by making the alternative application to strike out is, as I pointed out during the course of argument, inimical to proper case management.” [emphasis added]

“the rule [in CPR 17.2(2)] is there for a purpose, which is presumably to require prompt challenges to pre-service amendments so as not to hold up the proceedings and achieve clarity at an early stage”.

“35…The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. Where there is a good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted.

36 But it is always necessary to have regard to all the circumstances of the case…” [emphasis added]

“G4S has a strong point when it says that the effect of not allowing it to make its rule 17.2 challenge late would be to deprive it of the benefits of the Limitation Act which it clearly seeks to invoke and has clearly sought to invoke since the application was made.” [86]

either (if the Defendants are correct on the substantive issue of limitation), to disallow the claims of the additional Claimants; or

if (as the Court has found on the substantive issue), to relate back the date of the additional claims to 2019.

On either analysis the Defendants are not deprived of their limitation defence since as discussed above, it is irrelevant to their pleaded case on limitation. On this basis the position in this case can be distinguished from the position in G4S where relief from sanctions was granted.

“…If a claimant applies for permission to amend and the amendment arguably adds a new claim which is statute barred, then the claimant should take steps to protect itself. The obvious step is to issue separate proceedings in respect of the new claim. This will have the advantage of stopping the limitation clock on the date of the new claim form. If permission to amend is granted, then the second action can be allowed to lapse. If permission to amend is refused, the claimant can pursue his new claim in the second action. The two actions will probably be consolidated and the question of limitation can be determined at trial.” [69]

CPR r.17.1(1) does not permit an amendment pre-service, the effect of which is to substitute a claim brought in the name of a deceased person with another person purporting to act as representative.

A claim issued on behalf of a deceased person is a nullity: Kimathi v FCO [2017] 1 WLR 1081. There is no jurisdiction under CPR Part 3 to cure a nullity: Kimathi at [18]; Jogie v Sealy [2022] UKPC 32 at [55].

There is no reference to any such jurisdiction in CPR r.17.1. and no reason in principle or practice why the relevant amendments should be treated (as proposed by the Claimants) as if they were removing the original claim and adding a new claim.

Neither Kimathi nor Jogie was considering substitution under the auspices of CPR 17.1; what was in issue in those cases was whether there is a general discretion (i.e. post-service) to cure a nullity by reference to CPR 3.

Unilateral amendment under CPR 17.1 pre-service, and the jurisdiction to permit amendments or to cure defects post-service, are very different matters. The reason why CPR 17.1 permits unilateral amendment to a claim form prior to service is “obvious”: it is because “before a statement of case has been communicated, the opponent has not had a chance to rely on it and therefore an amendment would in no way affect their position” (Zuckerman on Civil Procedure, 4th Ed. §7.42).

The Defendants do not dispute (nor could they) that the effect sought by the Claimants in the 12 disputed cases could have been achieved under CPR 17.1 by simply removing the deceased person’s claim and adding a separate claim by their relevant representative or heir. Once it is accepted (in light of Daimler) that new claimants may be added pre-service pursuant to CPR 17.1, it is difficult to see why their claims cannot be added merely because the original claimants were deceased when the action was originally commenced. The Defendants’ objection is purely formal, requiring the consequence of such amendment to be judged by its form rather than its effect. Such an approach is artificial and out of keeping with the spirit of the CPR and the reasoning in Daimler and should be rejected.

“5 The first principle is that a claim cannot be brought in the name of a deceased person. There is authority for this, which dates from (at least) the early 19th century: see, for example, Watson v King (1815) 4 Camp 272; “How can a valid act be done in the name of a dead man”; Clay v Oxford (1866) LR 2 Exch 54, 55 and Tetlow v Orega Ltd [1920] 2 Ch 24. A more recent statement is that of Morritt LJ (with whom Simon Brown and Waite LJJ agreed) in In re NP Engineering and Security Products Ltd [1998] 1 BCLC 208 where the Court of Appeal said, at p 214: “It is well established that proceedings are only a nullity if the plaintiff is dead or non-existent in the sense of being a body corporate that has been dissolved at the time when the proceedings are commenced”.”

“17 The claimants’ alternative submission was that the court has a discretion, pursuant to its general case management powers, to cure the defect. I was referred to the decision of Peter Smith J in Meerza v Al Baho [2015] EWHC 3154 (Ch)… The Meerza case did not deal with the position where the claim was brought in the name of the deceased claimant. It is not therefore authority in respect of the first principle referred to in para 5 above. The living claimant in the Meerza case sued without having obtained the appropriate letters of administration. That is not this case.

…

19 In my judgment, there is no such discretion where the claim is a nullity, as the Millburn-Snell case and the more historic decisions make clear it is. If the Meerza case is not distinguishable I find myself constrained to depart from the reasoning and judgment of Peter Smith J. In their skeleton argument, the claimants said that the court can assist to ratify a claim that would otherwise be a nullity and relied upon the case of Adams v Ford [2012] 1 WLR 3211. There a solicitor took a pragmatic approach to include people in the claim form from whom he did not have authority. An application to strike out was refused. However, this decision of the Court of Appeal reinforces my judgment but there is no such power. Contrary to what the claimants asserted, the Court of Appeal first approached the question of whether what the solicitor had done there was a nullity and expressly decided that it was not: see paras 27—32. It is implicit in the judgment of Toulson LJ that had the proceedings been a nullity then they would not have been salvageable, save as to those claimants who had authorised the issue of proceedings: see para 36.” [emphasis added]

Millburn-Snell has subsequently been applied, albeit with very little discussion, by the Court of Appeal in Hussain v Bank of England Plc [2012] EWCA Civ 264, para 39; and at first instance in, for example, Kimathi v Foreign Commonwealth Office (No 2) [2016] EWHC 3005 (QB); [2017] 1 WLR 1081, paras 6, 17-19 . In the latter case, Stewart J rejected the view, that had been accepted by Peter Smith J in Meerza v Al Baho [2015] EWHC 3154 (Ch), para 46 , that the courts had a discretion under CPR Part 3 (dealing with the courts' case management powers) to apply the overriding objective to overcome the nullity of a claim, by allowing an amendment as to the capacity of a claimant (who had only subsequently been granted letters of administration) where it was just to do so (e.g. where it would cause no prejudice that could not be dealt with by a costs order). As Stewart J said at para 19:

“In my judgment, there is no such discretion where the claim is a nullity, as the Millburn-Snell case and the more historic decisions make clear it is. If the Meerza case is not distinguishable I find myself constrained to depart from the reasoning and judgment of Peter Smith J.”

Stewart J regarded it as an untenable argument that Millburn-Snell was decided per incuriam because the Court of Appeal had not considered the application of the overriding objective and CPR Part 3. I agree with Stewart J's analysis.” [emphasis added]

Rimer LJ [in Millburn] said the following at para 16:

“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.”

And at paras 29-30:

“What [Ingall] 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 rule 19.8(1) may empower, it follows that the claim the claimants issued was equally an incurable nullity. … I … consider that rule 19.8(1) has no application to the present case … rule 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 rule 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 rule 19.8(1) as providing an optional alternative to such ordinary course.”

Lord Neuberger MR added the following in his short concurring judgment at para 41:

“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 rule 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 elaborate further on what Lord Neuberger said by recognising that, contrary to what is sometimes thought, the common law rule can be defended at least as a general rule. This is because requiring the appropriate person (i.e. the administrator) to commence proceedings ensures orderly proceedings, avoids duplication, and means that the estate is represented by the most appropriate person.

As regards a fresh action being validly commenced by the appointed administrator, the Court of Appeal recognised that this is probably what would now happen. If so, the court recognised that, to save needless expense, appropriate directions should be given for the claim to move rapidly to trial without requiring a timely repeat of the steps already taken.” [emphasis added]

The court may add or substitute a party only if— (a) the relevant limitation period was current when the proceedings were started; and (b) the addition or substitution is necessary.

The addition or substitution of a party is necessary only if the court is satisfied that— (a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party…”.

“203 The position under rule 19.5(3)(a) seems to me to be different. I think it correct to regard this as a substitution even though the existing claimant does not exist. The non-existence of the originally pleaded claimant is not a bar to the notion of substitution (see the Sardinia Sulcis and Rosgosstrakh Ltd v Yapi Kredi Finansal Kiralama AO [2017] EWHC 3377 (Comm)), a conclusion to which I would have come even in the absence of authority. The more difficult question is whether the error made was one as to name (appropriately expanded, as the authorities require) or a mistake as to identity. Mr Rabinowitz submitted that where a claimant thinks about which claimant to join, and makes a wrong decision, that is not an error of nomenclature but is an error of identity. Again, I would agree with him on a literal meaning of the words, and I suspect a philosopher would too, but the law has adopted an expanded meaning of the concept of an error as to naming—see the discussion of the authorities above. According to the claim form, the claim was being brought by a fund which claimed a shareholding in G4S. In my view that is a description which is sufficiently specific to this case (per Stocker LJ in Sardinia Sulcis).” [emphasis added]

“…there are subtle differences between that line of authority [Jogie and Ingall] where the claim essentially is always maintained by the same person, but the issue is as to whether that person has the relevant capacity. And the typical fact situation where Jogie has been applied, and Ingall before it, are situations where the relevant capacity is not held, but is subsequently acquired when it's too late. But it doesn't say anything about the addition of a new claim in the name of a new claimant.”

“86 The application was heard by Roger ter Haar QC sitting as a Deputy High Court Judge, who permitted the substitution sought. He did so primarily on the basis of CPR rule 19.5(3)(b) (which is the equivalent of Rule 38(7)(b) of the CAT Rules) …

… the Deputy Judge rejected the contractors’ argument that CPR 19.5(3)(b) was inapplicable because Limited had ceased to exist at the time that the proceedings were commenced and hence the proceedings were a nullity. The Deputy Judge did not, however, explain his conclusion other than to state that:

“A situation where the proceedings would otherwise be a nullity is well within the situation in respect of which CPR Rule 19.5(3)(b) is intended to provide a remedy”.”

“Accordingly, in our judgment, the decision in AIG cannot be supported on the basis of the authorities to which the Deputy Judge referred. In our view, it was wrongly decided and should not be followed. The decision in AIG therefore casts no doubt upon the correctness of the Judgment that Rule 38 of the CAT rules does not permit the inclusion in the collective proceedings of claims by the personal representatives of persons who died before the Claim Form was issued on 20th February 2020.”

“on any basis it appears to me clear that it is no part of the function of rule 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”. [30]

Title to sue in England is governed by English law: Jennison v Jennison [2023] 2 WLR 1017 and High Commissioner for Pakistan in the United Kingdom v National Westminster Bank Plc [2015] EWHC 3052 6 (Ch).

This is correct as a matter of principle because the cause of action (being a chose in action) is situated in England (Dicey Rule 136: “Choses in action generally are situate in the country where they are properly recoverable or can be enforced”) and any cause of action vested in a deceased person devolves upon his properly authorised personal representative: Law Reform (Miscellaneous Provisions) Act 1932 section 1(1): “…on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”

Bringing claims for the estate is the administration of the estate: Cheshire & North Private International Law (15th ed) at p1333: “Administration therefore is usually followed by succession. The personal representative usually exercises his power to collect assets and to clear debts, pursuant to the law of administration, before distributing assets to beneficiaries under the law of succession.”

The decision in Jennison related to the administration of an estate situated in England and the title of a purported representative to the estate; in Pakistan what the judge was dealing with was a dispute as to who should be the personal representative in relation to that estate, and the estate was a disputed fund in England within the jurisdiction.

What matters for the purpose of characterisation is that the heirs' claims are not brought as representatives of the estate, but as personal claims of the heirs in respect of the deceased person's losses. The mere fact that the claim is being pursued in England should not be treated as giving rise to an estate in England so that the pursuit of the claim is to be treated as being the administration of the estate.

Under Brazilian succession law:

this characterisation fairly and accurately reflects the nature of the heirs' claims. They are claiming in their own names pursuant to the causes of action of the deceased persons, and in respect of the losses of the deceased persons;

the challenge that is advanced is to their alleged personal entitlement to be able to sue in their own names and in their own right;

the context for the claim supports their characterisation in that the heirs claim pursuant to the saisine principle as they have automatically stepped into the shoes of the deceased persons in relation to the causes of action.

It is plain that, if the Chetty v Chetty approach is applied in relation to the will of a testator who was domiciled in New South Wales, a court in this jurisdiction will potentially treat an executor as having title to the estate when a New South Wales court would not. As Ms Meager accepted, on her case the claimant could have issued her claim before obtaining a grant of probate in New South Wales and, hence, at a time when, under New South Wales law, the deceased’s estate was vested, not in her, but in the NSW Trustee in accordance with section 61 of the NSW Act. The claimant would have needed to be in a position to prove her title by the time the case came on for trial, by means of either an English grant of probate or a New South Wales grant and resealing, but, in the eyes of an English court, she would have had standing from the time of the deceased’s death.

There is, however, no doubt that English and Welsh law can diverge from that of New South Wales on whether a person appointed as an executor by a New South Wales testator has acquired title to assets in the estate. As Dicey, Morris & Collins on the Conflict of Laws states at Rule 156, “any property of the deceased which at the time of his or her death is locally situate in England” “vests automatically in his or her personal representative by virtue of an English grant”. Supposing, therefore, that the claimant had obtained a grant of probate in this jurisdiction and not in New South Wales, she would undoubtedly have been considered to have title to property of the deceased in this country despite the estate being vested in the NSW Trustee as a matter of New South Wales law.

As mentioned in paragraph 20 above, “[t]he administration of a deceased person's assets is governed wholly by the law of the country from which the personal representative derives his or her authority to collect them”. It seems to me that the question whether the claimant is to be considered to have acquired title to the deceased's cause of action against the defendants as the executrix appointed under his will is properly characterised as one relating to the administration of a deceased person's assets. It appears to me, too, that, notwithstanding that the claimant obtained a grant of probate in New South Wales, it is from this jurisdiction that she derives her authority to collect assets here: after all, a foreign grant of representation is not without more recognised as having any force in England and Wales. That being so, the law of England and Wales is, I think, to be applied to the issue of whether the claimant acquired title to the deceased's estate on his death and New South Wales law on the point is immaterial. On that footing, the Chetty v Chetty approach is in point and the claimant is to be regarded as having acquired title to the cause of action against the defendants on the deceased's death and so as having had standing to issue the present claim when she did.” [emphasis added]

“[50] …It seems to me that the question whether the claimant is to be considered to have acquired title to the deceased's cause of action against the defendants as the executrix appointed under his will is properly characterised as one relating to the administration of a deceased person's assets...”.

“[Muslim personal law applicable to the succession to the 7th Nizam’s estate] would not recognise the concept of administration of an estate and the relevant property would have vested automatically in his heirs. Therefore, the argument runs, there is no estate for an English personal representative to administer, and nothing to prevent the Nawab from making a direct claim to the relevant property…”. [27]

I also need to deal briefly with an argument advanced by Mr Brown this morning, that the Nawab can claim directly against the fund in his position as an heir, assuming it to be established on the facts that he is an heir. The argument was, put briefly, that he would be able to rely on the Muslim personal law applicable to the succession to the 7th Nizam’s estate. The evidence, in its current and limited form, indicates that his personal law would not recognise the concept of administration of an estate and the relevant property would have vested automatically in his heirs. Therefore, the argument runs, there is no estate for an English personal representative to administer, and nothing to prevent the Nawab from making a direct claim to the relevant property.

That argument, it seems to me, is not sustainable on the basis of authority which is both clear and binding on me. Under the English conflict of laws, the stage of administration of an estate is governed by the law of the place where the assets are situated, which, in the current context, means England. Procedural questions arising in the administration are, likewise, dealt with by the law of the place where the administration is taking place. It is only when one gets on to the question of succession and who is entitled beneficially to share in the estate that one looks to the law of the domicile of the deceased, where one is concerned, as here, with personal property.

The disputed fund is situated in this jurisdiction. That remains the case, regardless of how it may vest in accordance with the Muslim personal law of the 7th Nizam. The authorities establish that claims to property in this jurisdiction can only be advanced by and through a properly constituted personal representative. That proposition is most succinctly stated by Warrington LJ in the case of Re Lorillard [1922] 2 Ch 638 at 645-6, where he said:

“The principle is that the administration of the estate of a deceased person is governed entirely by the lex loci and it is only when the administration is over that the law of his domicile comes in.”

I was also referred to a first instance authority in the British Virgin Islands to similar effect, and to the decision of the House of Lords in New York Breweries Co. Ltd v Attorney General [1899] AC 62.

On the basis of those authorities, and as a matter of fundamental principle, it seems to me that the argument advanced by Mr Brown is misconceived and does not provide an arguable basis for his client to claim directly in his alleged capacity as an heir.” [emphasis added]

“as a matter of English law in this court, you have to ask if the heirs have succeeded to the assets in the sense understood in this jurisdiction. And that's what the High Commissioner of Pakistan demonstrates.”

“The modern legal systems which have had their origin in English law differ fundamentally from the civil law jurisdictions with regard to the procedure by which property is administered after the death of its owner. In England the only person entitled to deal with the property is the person to whom a grant has been made by the court…

In the civil law countries, in the rare case where personal representatives are appointed, their duties and functions are generally of a supervisory nature widely different from those of their English counterparts. The general civil law rule is that the entire property of a deceased person passes directly to his heirs, testate or intestate, or to his universal legatee, subject of course, to their acceptance...

The striking difference between English and civil law practice is that in the latter case the property passes on death directly to the successor, but in England it cannot be dealt with by anyone without a public grant. The automatic transfer recognized by civil law systems cannot operate on property of the deceased situated in England. Succession to movables is governed by the law of the deceased domicile, but no matter what that domicile may be, nobody can rightfully and effectually obtain possession of movable property situated in England unless he gets an English grant of probate or of administration. An English grant is always required in order to provide authority to administer English asset.” [emphasis added]

“Administration therefore is usually followed by succession. The personal representative usually exercises his power to collect assets and to clear debts, pursuant to the law of administration, before distributing assets to beneficiaries under the law of succession.”

“Administration concerns the procedure to deal with the deceased’s estates including grants of representation, the representative’s power to collect the deceased assets and pay debts, order of priority for the payment of creditors, and the power of the representative to handle the deceased assets such as postponing the sale. Succession concerns the substantive rights such as the beneficial entitlement to the deceased's estate.” [emphasis added]

“Disputes on classification may also arise in cases where an heir, to whom the deceased’s estates may pass directly under the foreign law, applies to enforce foreign judgments concerning the deceased's estate in England or bring actions in England to recover the deceased assets. It has been argued that these actions do not concern succession but administration of estates and the foreign heir has no interest to bring any action in relation to the deceased’s property in England before obtaining a grant from the English courts. The courts, though accepted the classification as a matter of administration, recognised the heir's interest to enforce a personal rights (sic) acquired pursuant to the choice of law of succession.”

“In my judgment the case of Vanquelin v Bouard 15 CB (NS) 841 (19.11.1863), relied upon by Mr Millett, illustrates the difference between administration and succession in the context of a deceased domiciled and with moveable assets abroad. It also provides an apposite example of how the courts in England will permit a party who has an absolute entitlement to a deceased’s property in accordance with the law of their domicile to enforce in this country that party’s claim in a personal and not representative capacity.” [emphasis added]

“A widow in France became donee of the universality of the succession of her deceased husband. By French law she was, as such donee personally liable for her husband's debts and personally entitled to his property. She paid to an indorsee the amount of a bill of exchange that her husband had drawn and later brought an action in England to recover this amount from the acceptor.

It was held that there were two grounds on which the widow must succeed. First the right that she sought to enforce was one that she had acquired personally since it arose from a payment made by her after her husband's death. Secondly her position as donee gave her, according to French law, a personal right to recover the sum from the acceptor.”

“the ground of the demurrer to these two counts is that the plaintiff is in effect suing in a representative character which he cannot do without having obtained letters of administration in this country. The allegation in both counts is that, being donee of the universality of the personal and real estate belonging to the succession of her deceased husband, the plaintiff became according to the laws of France entitled to all the property and rights of the deceased absolutely in her own right and not in any representative capacity. I am of opinion that that averment if it were necessary to stand upon it must be taken to be true and so it appears upon the record that the law of France in which country all the parties were domiciled would give her a locus standi to sue there in her personal capacity... As to the demurrer to the second count it is clear that the plaintiff took the bills on the death of her husband and if nothing more appeared she could only enforce them here by clothing herself with the character of his representative. But the law of domicile attaches to these parties and there is a distinct averment that the plaintiff was according to the laws of France “the donee of the universality of the personal and real estates belonging to the succession of the deceased and thereupon became entitled to all debts, claims, and causes of action which the deceased was entitled to and the same became and were according to the said laws vested in the plaintiff personally and absolutely in the same manner to all intents and purposes as they were vested in the deceased, and the plaintiff was and is entitled to demand and sue for the same in her own name and in her own right and the claims and rights of the deceased upon the said bills became vested in the plaintiff and the plaintiff became entitled to sue the defendant thereupon in her own name and in her own right.” [emphasis added]

“Although a foreign administrator is not permitted to sue in England as the representative of the deceased, he may enforce by action a right that is personal to him and which he is entitled to assert in his own individual capacity, even though it is connected with the estate that he is administering.” [emphasis added]

whether heirs have standing to commence proceedings on behalf of deceased persons as a matter of Brazilian law, or whether when inventory proceedings are open only the inventariante has standing to commence proceedings on behalf of the deceased estate and when inventory proceedings are closed, whether the heir is only entitled to commence proceedings if the litigation rights were transferred to them following the distribution of the assets and recorded in the Formal de Partilha;

whether Brazilian law permits heirs to pursue claims in their personal capacity i.e. solely for their own benefit rather than a representative capacity i.e. for the benefit of those interested in the estate of the deceased person.

“1.2 The heirs have, concurrent standing to sue, with the estate (represented by the provisional administrator or the inventariante), to bring claims in their own name in defence of the interests of the entire estate, provided that there is no distribution.”

“The law authorises the inventariante to represent the estate in court, as provided for in Articles 75 and 618 of the Brazilian Civil Procedure Code. There is no article in the law that grants concurrent standing to the heirs. There is jurisprudence that authorises the heirs to propose measures to defend the estate’s assets in urgent and specific situations, but these decisions are not binding under the Brazilian legal system.”

“Q. There is no reference in the court's reasoning either to urgency being the basis of the heir's entitlement to sue, or the particular nature of the property, is there?

A. Maybe there is not here, but the action itself shows the urgency of the situation…”.

“The following shall be represented in court, as plaintiffs and defendants:

I - the Federal Government, by the Office of the General Counsel to the Federal Government, either directly or through connected authorities;

II - the State and the Federal District, by their State Prosecutors;

III - the Municipal District, by its mayor or municipal aftorney;

IV - government agencies and foundations governed by public law, by whomever the law of federal entity appoints

V - the bankruptcy estate, by the bankruptcy trustee;

VI - the unclaimed or heirless estate, by its curator;

VII - the inheritance, by the administrator/inventariante;

…”

“The inventariante is responsible for:

I - representing the estate as plaintiff or defendant, in or out of court, observing, in relation to the ad litem, the provisions of Article 75, Paragraph 1;

II - managing the estate, safeguarding the assets with the same level of diligence used as if such assets were their own;

…”

“The administration of the inheritance, which is the responsibility of the inventariante, doesn't confused with the right of the heirs to bring a claim as well… I agree that this is the responsibility of the inventariante and before assuming this role, the provisional administrator responsible for that, but they are separate things. The list of duties of the inventariante is definitely much wider. What I say in my report is this duty of the inventariante, which is wider, includes one of the items if the representation in court it does not exclude the possibility of the heir to also bring a claim in their own name, their share in the inheritance, their own share in the inheritance.”

“The administration of the inheritance will be exercised by the administrator [inventariante] of the estate from the execution of the commitment up to the ratification of the sharing of the inheritance.”

“…even on Professor Schenk's case that the heirs have concurrent standing… any claim which the heir brings before the sharing takes place in order to defend the assets of the entire inheritance. The assets representing the estate of the deceased person are being defended. The heir is not bringing the claim in the same way as if he had personally suffered loss and damage… If an heir successfully pursues a claim before the sharing takes place, before the assets distributed, any sums which the heir receives will not be his own personal assets…The heir is required to treat those sums as forming part of the estate which are subject to the sharing.”

the heirs have a personal entitlement to sue on or in respect of the assets, including any causes of action of the deceased, because all of a deceased person's assets, including any causes of action, against third parties immediately and automatically vest in the deceased person's heirs upon death under the legal principle of droit de saisine (Article 1.784 of the Brazilian Civil Code);

under Brazilian law the transfer of the deceased person's assets to that person's heirs takes the form of the heirs' acquisition of joint ownership of those assets as an undivided mass, pending the formal sharing of the inheritance among the heirs (Article 1.791); and

until such formal sharing, the heir's rights of joint ownership include the right to take legal proceedings in an heir's individual name in order to claim the assets from third parties or defend those assets against third parties and thereby preserve the inheritance, of which the heir is a co-owner (Article 1.314).

“The rights are transferred to the heirs at the time of death (with the opening of the succession, according to the saisine principle). Since then, before the distribution, the heirs are the owners of the assets that make up the estate and, have concurrent standing to issue a claim, on their own behalf, in defence of the common patrimony. After distribution, when the indivisibility in respect of the shared property and rights ends, the standing belongs only to the heir to whom the property or right has been attributed.” [emphasis added]

“…The heirs are the true owners of the assets and rights that form part of the estate from the moment of death (saisine principle). The ownership of assets and rights and the status of indivisibility of the inheritance until its distribution, with the application of the legal rules of condominium (Art. 1,314 and 1,791, sole paragraph, CC), guarantee the heirs concurrent standing to bring a claim in their own name and in defence of the common heritage.” [emphasis added]

“The Article 1.791, the single paragraph of the Brazilian Civil Code that declares the immediate transmission of rights to the heirs, this makes reference to the “condomínio” regime which is also in the Brazilian Civil Code. This allows clearly, especially when seen according to the constitutional principle of access to justice, that the heir can exercise the defence of his own interests compatible with the indivisibility principle. And we have also seen in the cases brought in my report that the defence -- the defence of their share is in their own name and as a consequence it involves the defence of the whole inheritance.” [emphasis added]

“The estate is the name given to the inheritance in Brazilian procedural law. The estate is a group of assets, with transitory existence, authorised by procedural law to sue and be sued until the distribution of the inheritance to the heirs. The estate does not have legal personality and, therefore, is not a holder of rights. The assets and rights comprising the estate belong to the heirs in joint ownership. The estate does not prevent the heirs from acting in their own name to defend the assets and rights that compose the inheritance, as we will see in item 6.1.2 of this Report.”

“As a consequence of granting the heir authorisation for the judicial defence of the common patrimony (that belongs to all the other heirs in joint ownership until the distribution), the proceeds awarded to the heir in the legal claim will not be considered, automatically, as personal patrimony of that heir. The Brazilian succession law mandates that the asset or right granted in court (litigious rights or asset) be subjected to the inventário proceeding. This means the award would need to be shared among the other heirs, through individualisation of each heir’s shares via a distribution or new distribution, as explained in item 6.1.5 of this Opinion. This legal requirement aims at protecting the interests of the heirs who chose not to file a claim in defence of the common patrimony.” [emphasis added]

“… the concurrent standing of the heir in reference to the estate does not mean the heir is necessarily representing the interests of the inheritance in court. The estate represents the indivisible mass in court, the heir acts in his own or her own behalf, defending their own interests. And as I will explain in paragraph 40 of my opinion, because the heir is defending his own share of the inheritance, defending the inheritance as a whole, such benefit might be attained and will be shared amongst other co-heirs. In the inventário proceeding, of course, or in another inventário of redistribution. But these are different elements representing the estate in court and the exercise by the heir of his or her own right, his or her own prerogative, to defend his or her interests.”

“…The heir is defending the interest of the whole, because it's not possible to individualise one's share. The heir defends the whole as a reflex of defending one's own share of the inheritance as the law states. The ideal inheritance share -- there is an ideal share. The heir is the owner of an ideal share of the inheritance. So the heir is defending the ideal share in one's own behalf. As a reflex, the heir defends the interests of the inheritance as a whole.”

“The Brazilian succession law mandates that the asset or right granted in court (litigious rights or asset) be subjected to the inventário proceeding. This means the award would need to be shared among the other heirs, through individualisation of each heir’s shares via a distribution or new distribution”. [emphasis added]

“It should be emphasised that the standing to sue of the heir, as already decided by this 3rd Panel, is limited to the defence of the interest of the estate itself, not including the defence of individual interests, as follows:

[citing from an earlier judgment]…

The standing to sue, as a result of the right of saisine and the indivisibility of the inheritance, may be extended to the co-heirs before the distribution is carried out. However, this exceptional extension of legal standing is limited only to protect the interests of the estate…”.

“Under the English conflict of laws, the stage of administration of an estate is governed by the law of the place where the assets are situated, which, in the current context, means England. Procedural questions arising in the administration are, likewise, dealt with by the law of the place where the administration is taking place. It is only when one gets on to the question of succession and who is entitled beneficially to share in the estate that one looks to the law of the domicile of the deceased…”. [28]

“... has an absolute entitlement to a deceased's property in accordance with the law of their domicile to enforce in this country that party's claim in a personal and not representative capacity.”

By persons who were deceased;

On behalf of deceased persons where it is stated “instructions pending”;

By personal representatives of deceased persons where (i) that authority to issue and progress the claim was derived from an assignment of the right to conduct the claim to the Brazilian Association of Citrus Growers, the Federation of Agriculture of the State of São Paulo and/or Prisma Capital Ltd (the “Relevant Bodies”) and (ii) the personal representatives were not authorised to assign the right to the Relevant Bodies; and

By heirs of deceased persons where (i) that authority to issue and progress the claim was derived from the relevant heir appointing one or more of the Relevant Bodies as their attorney and (ii) the heir was not authorised to enter into the power of attorney.

the seven claims which were brought and remain in the names of Claimants who were deceased fall to be struck out.

the two claims which were brought and remain in the form “instructions pending, a personal representative of the estate of [X]” (that is, without any named person as Claimant) fall to be struck out.

“Q. All right. So in those cases, in those cases, where an heir can legitimately bring a claim in its own name in the exercise of its rights of co-ownership, presumably you accept that in those cases the heir must necessarily be entitled to authorise lawyers to act on its behalf?

Yes, in this case, yes.”

Upon causa mortis succession, assets and rights of which the inheritance is composed become immediately part of the heirs’ patrimony in an undivided manner, as seen in item 5.2 of this Opinion. Consequently, heirs may transfer these hereditary rights over the hereditary share to third parties, in whole or in part, onerously or gratuitously. This is the so-called assignment of hereditary rights, which can be made from the opening of the succession until the distribution (article 1,793, CC 74 ). For such assignment, a public deed is required, and prior judicial authorization is not needed. The absence of a public deed entails the nullity of the assignment (art. 166, IV, CC 75 ), although there are methods under Brazilian law by which the intended purpose of the act can still be achieved, as will be seen below.

The Brazilian civil law also authorises the assignment of inheritance rights over individualised assets or rights. Prior court authorisation is ordinarily required for an heir to dispose of property (article 1,793, par. 3, CC 76 ). If there was no prior court authorisation, the assignment of an inheritance right over an individualised right or asset prior to the distribution shall be ineffective against the other heirs (article 1,793, par. 2, 77 CC). To emphasise, the absence of prior court authorisation does not entail the nullity of the assignment made on individualized assets or rights, only the ineffectiveness. This is in order to protect the legal situation of other heirs, insofar as, until the distribution among all the heirs occurs, it is not possible to specify what will be the effective patrimony to share, nor to know to which heir will belong each individualized asset or right.

Thus, prior court authorisation for the assignment of inheritance rights over individualized assets or rights before distribution can be exempted if there is only one heir or if all heirs agree to the assignment. In these cases, the assignment made by public deed will be valid and effective, even if there was no prior court authorisation”. [emphasis added]

“The right to the open succession, as well as the portion available to the co- heir, can be object of assignment by public deed.

Paragraph 1…

Paragraph 2 - The assignment, by the joint heir, of their hereditary right over any property of the estate considered singularly is ineffective.

Paragraph 3 - Pending indivisibility, the disposition, by any heir, of a component asset of the inheritance, without prior authorisation from the succession judge does not produce any legal effects.”

“In this case here, the inventariante represents the estate and the estate administers the interest of the heirs. When the inventariante, who is a representative, wants to alienate an asset it needs law -- need judicial authorisation in his capacity as a representative. Now I want to draw your attention. Now we're looking at a very different situation here. The heir who received the asset at the point of the death of his father, for example, the heir immediately receives the inheritance rights. And if he wishes -- it's a personal right. It's a right that has been received with the inheritance. If the heirs wants to transfer, assign this right it to a third party, he can do so, because he is disposing of an interest which is his own. This is the difference.”

“Article 1.793 at the head of the article it demands a public deed for the assignment. A public deed or the absence of a public deed demands the application of Article 166. The absence of a public deed causes this section to be null… you can notice at the beginning of Article 166 that we read “it is null”. That is different from when we read in 1.793, second and third paragraphs, when we read “inefficacy”. And we make a distinction in Brazil three different plains or approaches for the business, the legal business, the existence of a legal business, validity of the legal business, and efficacy of the legal business. The inefficable legal business exists, is valid, but depends on the implementation of a condition to bring it to effect… I want to emphasise that whenever the legislature wants to change the consequence of the non-observation of a requirement, that is done in an express way, obvious way. Article 1.793 explicitly talks about inefficacy. So it is not right to understand the term inefficacy of Article 1.793, third paragraph, as it were, nullity. These are different concepts of the existence, validity and efficacy of the legal act. They're different.”