Hilton v Sutton Steam Laundry

JurisdictionEngland & Wales
CourtCourt of Appeal
[COURT OF APPEAL] HILTON v. SUTTON STEAM LAUNDRY. 1945 July 20, 23. Lord Greene M.R., du Parcq and Morton L.JJ.

Administration - Action by administrator - Writ issued by administrator before grant of letters of administration - Claim under Fatal Accidents Acts - Title of plaintiff to sue - No relation back - Application to amend writ by suing in individual capacity as dependant - Limitation of time for bringing proceedings - Amendment not allowed - R. S. C. Or. 3, r. 4 - Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93), s. 3 - Fatal Accidents Act, 1864 (27 & 28 Vict., c. 95), s. 1.

The plaintiff, who was the sole dependant of her deceased husband, brought an action in an administrative capacity for damages under the Fatal Accidents Acts in respect of his death by accident. She had not at the time when the writ was issued taken out letters of administration:—

Held:— (1.) applying Ingall v. Moran [1944] K. B. 160, that the writ was a nullity and was not validated by the subsequent grant of administration; and (2.) that, although the action could have been brought by the plaintiff as sole dependant in a personal capacity with the same result, the court could not allow an amendment of the writ and statement of claim, more than a year after the husband's death, so as to convert the action into one brought by the plaintiff in her personal capacity. To allow such an amendment would deprive the defendants of the benefit of the time limit fixed for bringing an action under the Fatal Accidents Acts by s. 3 of the Act of 1846, which prevented the plaintiff from commencing a new action in a personal capacity.

APPEAL from Birkett J.

On October 29, 1942, the plaintiff's husband died as the result of an accident to him while employed on the defendants' premises, and on February 19, 1943, the plaintiff, Emily Rose Hilton, issued a writ as administatrix of the deceased's estate, claiming “damages against the defendants for negligence and breach of statutory duty pursuant to the provisions of the Fatal Accidents Acts and the Law Reform (Miscellaneous Provisions) Act, 1934.” She delivered a statement of claim on March 15, 1943, and para. 1 was as follows: “The plaintiff who is the widow of Frank John Hilton deceased, brings this action as administratrix of the deceased's estate for the benefit of such estate under the Law Reform (Miscellaneous Provisions) Act, 1934, and for the benefit of herself the sole dependant of the deceased who has suffered damage by reason of the death of the deceased under the Fatal Accidents Acts, 1846–1908.”

At the time of the issue of the writ and the delivery of the statement of claim the plaintiff had not obtained a grant of letters of administration, which were only granted on October 22, 1943.

On December 10, 1943, it was decided in Ingall v. MoranF1 that an action brought by a plaintiff under the Law Reform (Miscellaneous Provisions) Act, 1934, claiming to sue in a representative capacity as administratrix of her son's estate before letters of administration had been taken out, was incompetent and that the doctrine of the relation back of an administrator's title to the intestate's death could not be relied on. If this applied, a new action could not be brought under the Fatal Accidents Acts because the period of twelve months from the date of the death, limited by s. 3 of the Act of 1846 for the bringing of a claim under those Acts, had expired. The plaintiff therefore applied for leave to amend the writ and statement of claim by striking out the claim under the Law Reform (Miscellaneous Provisions) Act, 1934, and varying the claim under the Fatal Accidents Acts, so as to make it a claim by the plaintiff in a personal capacity. The master refused leave and Birkett J. affirmed his decision. The plaintiff appealed.

C. L. Henderson K.C. and B. M. Goodman for the plaintiff. A joinder of claims by or against an executor or administrator with claims by or against him personally is permitted by Or. 18, r. 5, and Or. 3, r. 4, makes it necessary to say if a claim is made in an administrative capacity. Further by Or. 16, r. 11, no cause or matter is to be defeated by reason of the misjoinder or non-joinder of parties. While the writ only made a claim in an administrative capacity the statement of claim only made a claim in an administrative capacity so far as the Law Reform (Miscellaneous Provisions) Act, 1934, was concerned and in view of the decision in Ingall v. MoranF2 that claim is void because the plaintiff had not taken out letters of administration. But the claim under the Fatal Accidents Acts could be brought by an executor or administrator or by the dependants in a personal capacity in cases within the Fatal Accidents Act, 1864, s. 1. That enabled the plaintiff to sue in a personal capacity as sole dependant and that was done by the statement of claim on its true construction. [They referred to In re RichardsonF3.] Order 70, rr. 1 and 2, make it clear that non-compliance with rules does not render a proceeding void unless the court so directs. Under r. 2, any application to set aside a writ must be made within a reasonable time. Here the defendants became aware of the irregularity when they were told that the plaintiff had no grant of administration. They could have applied to strike out the claim in the statement of claim but waited a year and took part in interlocutory proceedings.


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