Eloise Mukami Kimathi and Others v The Foreign & Commonwealth Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 24 November 2016 |
| Neutral Citation | [2016] EWHC 3005 (QB) |
| Docket Number | Case No: HQ13X02162 |
| Court | Queen's Bench Division |
| Date | 24 November 2016 |
[2016] EWHC 3005 (QB)
Mr Justice Stewart
Case No: HQ13X02162
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Myerson QC & Sophie Mitchell (instructed by Tandem Law) for the Claimants
Mathew Gullick (instructed by The Government Legal Department) for the Defendant
Hearing date: 15 November 2016
Introduction
On 28 October 2016 the Defendant issued an application in the following terms:
"…that the claim of Test Claimant 11 (Ndimitu Wagachima) be struck out, pursuant to CPR 3.4(2)(a) and/or (b), as a nullity or otherwise that it be summarily determined for that reason."
The parties have used the abbreviation TC11 and the Court will adopt their abbreviation in this judgment. No disrespect is intended to the deceased.
The application contains a short witness statement from Mr Andrew Robertson, a senior lawyer in the Government Legal Department. He says:
i. That the Defendant applies to strike out the claim purportedly brought by TC11 and for removal of the name of that Claimant from the register.
ii. TC11's name was added to the Group Register on 14 March 2014. However he had died over 6 months previously on 23 August 2013.
iii Defendant's primary defence to the TC11's claim is that it is a nullity because it was brought in the name of a person who was already dead. Mr Robertson refers to paragraphs 2 and 3 of the Re-amended Individual Defence, which states:
"2…The claim is not properly constituted and/or is a nullity because it was brought in the name of Mr Ndimitu Wagachima (below referred to as "the deceased claimant") after he had died, and/or because the requirements of section 2(1) of the Colonial Probates Act 1892 have not been met.
3. The Defendant notes that at all material times, the claim has been entered on the Group Register in the name of the deceased claimant personally (and not that of his Estate or the Administrators thereof) and no permission to amend, to add or substitute the deceased Claimant's Estate has been sought from, or granted by, the Court."
To complete the relevant pleadings, in the Individual Particulars of Claim the following appears:
"1. This claim is brought pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased Claimant, Ndimitu Wagachima.
2. The Administrators of the Estate, and by whom the claim is brought, are Esther Nyambura Maina, Joseph Waigwa Wagachima and Duncan Maina Karawathe. A Limited Grant of Letters of Administration ad litem was issued in favour of the Administrators at the High Court of Kenya through the Registry at Nairobi on 28 January 2015.
3. The deceased Claimant died on 23 August 2013. He died of Pneumonia. He is survived by close family members who are beneficiaries of his Estate."
In the Individual Reply, paragraph 4, it is stated:
"As to paragraphs 2, 3 and 4 [of the Re-amended Individual Defence] the basis of the claim is adequately pleaded and the Defendant knows the case it has to meet. The claim was brought on behalf of the deceased's estate and the Claimants are and remain anxious to avoid unnecessary and disproportionate expense in meeting technical requirements until such time as it is necessary to do so, save that matters are in hand and are being dealt with as expeditiously as is reasonable in the circumstances. If there is any particular reason why the Defendants consider it imperative to take such action at this point in time, would they please specify."
The Defendant contends:
a) TC11 died on 23 August 2013, nearly seven months before his name was entered onto the Group Register on 14 March 2014, and the claim purportedly brought by him is a nullity.
b) The pleaded basis upon which TC11's claim is alleged to be valid (i.e. that it was an estate claim) is incorrect both in fact and in law – the claim was brought in the name of TC11 (not that of his estate); but in any event, no estate claim could have been brought in England until the Kenyan High Court's letters of administration were re-sealed by the Family Division of the High Court on 22 March 2016.
The Established Law
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 19 th century 1. A more recent statement is that of Morritt LJ (with whom Simon Brown and Waite LJJ agreed) in NP Engineering and Security Products Limited, Official Receiver v Pafundo2 where the Court of Appeal said (page 204a)
"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."
The second principle is that an administrator cannot sue under s.1 of the Law Reform (Miscellaneous Provisions) Act 1934 unless a grant of letters of administration has been obtained. In Ingall v Moran3 Scott LJ said (page 164):
"The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant's tort. That chose in action was his. To it the common law maxim " Actio personalis moritur cum persona" would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then — and not before — it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son's surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 — an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff's failure to produce them the action would, on the defendant's application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action — just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim… The old writ was, in truth, incurably a nullity. It was born dead and could not be revived."
(See also Luxmoore LJ at page 167 – 168 and Goddard LJ at page 170).
This principle has been more recently reiterated in Millburn-Snell v Evans4.
Thirdly, in respect of a Grant of Administration in another jurisdiction, proceedings cannot be validly instituted prior to the re-sealing of the Grant in England. 5
The Dispute
In short, the Defendant's submission is:
i. Because TC11's name was added to the Group Register on 14 March 2014 and he had died on 23 August 2013 the claim was brought when he was already dead and was, on the basis of the authorities cited, a nullity.
ii. The claim was brought in TC11's name and not that of his estate.
iii. Even if the claim had been brought on behalf of TC11's estate (paragraph 4 of the Individual Reply), when his name was added to the Group Register on 14 March 2014 no valid estate claim could have been brought, as the Grant of Administration in Kenya was made on 28 January 2015 and was re-sealed in England on 22 March 2016.
The Claimants in response refer to a detailed chronology which I attach as an Appendix to this judgment.
The central point is the Claimants' submission that the date of issue was not TC11's entry onto the Group Register on 14 March 2014 but rather the issue of the claim form on 28 March 2013 i.e. prior to TC11's death. Therefore, it is argued, there is no nullity. By reference to the chronology it is submitted that the Claimants on the Group Register (aside from the initial 20 Claimants of whom TC11 was not one) have not separately issued their claims. This was with the agreement of the Defendant and said to be with express authority of the Court, namely the then Senior Master, Master Whitaker. The first case management hearing was on 1 July 2013 6. The Claimants' application for a Group Litigation Order (GLO) was made on 5 July 2013 7. At that stage TC11's name was on the Schedule served with the application for a GLO. It was in the month following, namely August 2013, that TC11 died. On 22 October 2013 8 a further CMC took place before Master Whitaker. As can be seen from the extract in the chronology, the question of Claimants being added to the Register was canvassed. Master Whitaker said that there would be one claim, i.e. claim number HQ13X02162, and that number would apply to everybody who went on the Register. He further said, "The date of entry on the Register is there anyway, separately, is it not? So that is fine. I mean, you do not need a claim number, because they are all proceeding under the same…"
The GLO was then made on 4 November 2013 9 and TC11's name was added to the Group Register on 14 March 2014 10.
The claim form was issued on 28 March 2013 11 and served on the Defendant on 8 May 2013 12. The Claimants' submission...
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