Fielding v Rigby (trading as Ashlea Hotel)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MANN,LORD JUSTICE PETER GIBSON |
| Judgment Date | 28 June 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0628-4 |
| Date | 28 June 1993 |
| Court | Court of Appeal (Civil Division) |
[1993] EWCA Civ J0628-4
(His Honour Judge P M Baker QC Sitting as a Deputy High Court Judge)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Mann and Lord Justice Peter Gibson
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DONCASTER DISTRICT REGISTRY
MR D. NOLAN (instructed by Messrs Dibb Lupton Broomhead, Manchester) appeared on behalf of the Appellant
MR. P. A. BUTLER (instructed by Messrs Fieldings, Bolton) appeared on behalf of the Respondent
THE MASTER OF THE ROLLSThis is an appeal against a decision of His Honour Judge P M Baker QC, sitting as a judge of the High Court on 25th September 1992, when he allowed the plaintiff's appeal from an order of Mr District Judge Foster, the effect of which had been to strike out the action with costs. Judge Baker's decision had the effect that the action could continue. He did, however, grant leave to the defendant to appeal to this court and the defendant, accordingly, challenges his decision. The facts of the matter fall within a small compass and the point that is raised by the defendant is a very clear one.
On 22nd August 1987 a Mr Brian Fielding had, or claims that he had, an accident while he was a guest in the defendant's hotel at 81 Thorn Road, Doncaster. The details of the accident are irrelevant, but are in brief that he was putting weight on a stool when the stool collapsed and he broke his leg. On 25th January 1990, within the three year limitation period, a writ was issued on his behalf and in his name, claiming damages for personal injuries against the defendant. The writ was not, at that stage, served.
On 9th October 1990 Mr Fielding died. He had the overwhelming misfortune of being a haemophiliac to whom contaminated blood was given, as a result of blood handled by the Blood Transfusion Service becoming infected with the AIDS virus. As a result, he died, as I have said, on
9th October 1990. The unhappy circumstances of his death have no bearing whatever on the point of law raised in this appeal, but naturally dispose one to feel sympathetic towards Mr Fielding and those whom he leaves behind.
Very shortly after his death, letters of administration were issued to his widow, who became his personal representative. For reasons that are described in an affidavit, but are not directly germane to this appeal, steps were not taken to amend the title of the action at that stage and substitute the widow and personal representative as the plaintiff. Instead, on 9th January 1991 the writ was served with a statement of claim on the defendant in the name of Mr Brian Fielding who, as I have said, was by that stage dead. There was an acknowledgment of service and a defence was served.
On 22nd May 1991, on ex parte application, an order was made under Ord. 15, r.7 of the Rules of the Supreme Court, the effect of which was to substitute Mr Fielding's widow and personal representative as the plaintiff. That order was duly sealed and served on the defendant's solicitors on 20th November 1991. The defendant's solicitors thereupon applied to strike out the action on the basis that the proceedings were a nullity, service having been effected on behalf of the plaintiff who, at the date of service, did not exist.
It seems very likely that the district judge's attention was drawn, and his decision influenced, by a note in the White Book, which now appears at page 211 of the 1993 White Book, paragraph 15/7/2, where one sees the following:
"But where a sole plaintiff or a sole defendant dies, etc., the action becomes abated or defective ( Eldridge v. Burgess; Jackson v. N.E.Ry. (1877) 5 Ch.D. 844) until steps are taken to continue proceedings under this rule. And so in the case of the assignment or devolution of the estate of a sole plaintiff or defendant."
The plaintiff appealed to Judge Baker against that order of the district judge and he allowed the appeal. That decision, the defendant now submits, was wrong. It is submitted to be wrong on a clear and simple principle, namely that there must be a living and existing plaintiff named in the writ at the date of service on the defendant.
The starting point for considering this problem is, I think, section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 which provides:
"Subject to the provisions of this section, 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. Provided that this subsection shall not apply to causes of action for defamation …."
The effect of that subsection, plainly, was to abrogate, save in the case of defamation, the old rule that a personal cause of action dies on the death of the person in whom the cause of action is vested. The provisions of that section are reflected in Ord. 15, r.7 of the Rules of the Supreme Court, which provide in sub-rule (1):
"Where a party to an action dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy."
Accordingly, the situation in the present case is as follows. A cause of action was vested in the deceased at the date when the writ in these proceedings was...
To continue reading
Request your trial
-
Haji-Ioannou v Frangos [QBD]
...Clowes International Ltd v HenwoodUNK [2008] EWCA Civ 577. Bowler v John Mowlem & Co LtdWLR [1954] 1 WLR 1445. Fielding v RigbyWLR [1993] 1 WLR 1355. Haji-Ioannou v Frangos [1999] CLC 1075. Udney v Udney [1869] LR 1 Sc & Div 441. Vanquelin v BouardENR (1863) 15 CB (NS) 341; 143 ER 817. Regi......
-
Re K (Deceased)
...it can still be the law following the enactment of s 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934: cf. Fielding v Rigby [1993] 1 WLR 1355. The second reason was that the judgment was obtained against the Deceased after the latter's death. In support of this submission counsel ......
- International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corporation of India
- Asiah bte Abdul Manap and Another v Capital Insurance Bhd