Piggott v Aulton (Deceased)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Arden |
| Judgment Date | 29 January 2003 |
| Neutral Citation | [2003] EWCA Civ 24 |
| Docket Number | Case No: B3/2002/1348 CCRTF B3/2002/1348/A |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2003 |
[2003] EWCA Civ 24
Lord Justice Simon Brown
Lord Justice Sedley And
Lady Justice Arden
Case No: B3/2002/1348 CCRTF B3/2002/1348/A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY
COURT (His Honour Judge Durman)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Richard Moat (instructed by Weightman Vizards) for the Appellant Simon Beard (instructed by DLA) for the Respondent
This is an appeal against the order of His Honour Judge Durman sitting at Birmingham County Court, dated 12 June 2002, whereby the court exercised its discretion to allow the action to proceed pursuant to section 33 of the Limitation Act 1980 and made an order that the defendant should not pay the costs of the claimant of the preliminary issue. As to the court's decision under section 33, the only point taken is whether the judge was correct in concluding that the court had jurisdiction under section 33 of the Limitation Act 1980. Accordingly, no point is taken on the exercise of discretion under that section.
The appellant is the defendant in this action, which is brought by the claimant, Stephanie Piggott, against the estate of David Aulton (deceased) represented by David Murray. In this action the respondent claims damages for injuries and consequential loss sustained in a serious road accident on 14 June 1997. As a result of injuries received in the accident, the deceased died shortly thereafter. No personal representatives were appointed to administer his estate. The respondent first sought legal advice about four weeks after the accident. She gave instructions to her solicitors around April 1998. The claim was first intimated on her behalf to the deceased's insurers by letter dated 19 July 1999. On 13 June 2000, proceedings were issued against "the personal representatives of the estate of David Aulton (deceased)". The claim form, particulars of claim, medical reports and schedule of special damage were sent to the insurers on 13 June 2000. The insurers' solicitors responded referring, among other things, to CPR Part 19.8(2)(ii) and indicating that they were trying to identify whether personal representatives of the estate of the deceased had been appointed and suggesting a discussion on that point. No steps were taken to secure the appointment of a representative for the estate despite a number of prompting letters and messages from the insurers' solicitors. On 21 September 2000, the respondent's solicitors again sent the claim form, particulars of claim and a respondent's pack to the insurers' solicitors "by way of service upon you". However, the proceedings could not be effectively served in that way until a person had been appointed to represent the deceased's estate. Nothing was done to regularise the position before the period for service of the claim form expired.
In May 2001, following advice from counsel, these proceedings were discontinued and new proceedings were issued on 4 June 2001. On 7 August 2001, an order was made by consent for David Murray, a representative underwriter, to be appointed to represent the estate of the deceased and the proceedings were then served on the insurers' solicitors.
The defendants then took the point that the service of the new proceedings was an abuse of process under the principle established in Walkley v Precision Forgings Ltd [1979] 1 WLR 606. In that case, the plaintiff, who had contracted an industrial disease, issued proceedings against his former employers on 7 October 2001 claiming damages for personal injuries. The plaintiff did not proceed with this action and the time within which they could be served passed without service being effected. Subsequently, further proceedings were issued on his behalf, this time outside the limitation period and the plaintiff sought to rely on what is now section 33 of the Limitation Act 1980. There is no material difference between those provisions and section 33(1) of the Limitation Act 1980 and accordingly I will read the latter. It provides:-
"33(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
a) the provisions of section 11 [or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and
b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specific cause of action to which the action relates."
In the Walkley case, the House of Lords held that once the plaintiff had started an action within the primary limitation period it was only in the most exceptional circumstances that he would be able to bring himself within this provision in respect of a second action to enforce the same cause of action. Lord Wilberforce, Viscount Dilhorne and Lord Diplock all gave speeches and Lord Edmund Davies and Lord Keith of Kinkel agreed with the speeches of Lord Wilberforce and Lord Diplock. The three speeches rely on the same point and it is sufficient for present purposes for me to quote from the speech of Lord Diplock at page 619:-
"My Lords, in my opinion, once a plaintiff has started an action (the first action) within the primary limitation period it is only in the most exceptional circumstances that he will be able to bring himself within section 2D [now section 33 of the 1980 Act] in respect of a second action brought to enforce the same cause of action. If the first action is still in existence, as it was in the instant case when the matter was brought before the master and the judge, cadit quaestio; he has not been prevented from starting his action by section 2A or section 2B [now sections 11 and 12 of the 1980 Act] or at all, so the provisions of those sections cannot have caused him any prejudice. Does it make any difference that the first action is no longer in existence at the time of the application under section 2D either because it has been struck out for want of prosecution or because it has been discontinued by the plaintiff of his own volition? In my view, it does not. These are self-inflicted wounds. The provisions of section 2A caused him no prejudice at all; he was able to start his actions. The only cause of the prejudice to him in the case of dismissal for want of prosecution is dilatoriness which took place after the action was started whether on his own part or on the part of his legal advisors. In the case of discontinuance the only cause of the prejudice is his own act." (emphasis in the original)
In the present case, the original proceedings were against the personal representatives of David Aulton (deceased). The second proceedings were against the estate of David Aulton (deceased). However, CPR 19.8 contains the following relevant provisions:-
"(2) Where a defendant against whom a claim could have been brought has died and–
a) a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
b) a grant of probate or administration has not been made-
i) the claim must be brought against 'the estate of' the deceased; and
ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
(3) A claim shall be treated having been brought against 'the estate' of the deceased in accordance with paragraph (2)(b)(i) where—
a) the claim is brought against the 'personal representatives' of the deceased but a grant of probate or administration has not been made; or
b) the person against whom the claim was brought was dead when the claim was started …"
Accordingly, the original proceedings are deemed to have been brought against "the estate of the deceased" in accordance with CPR 19.8(2) notwithstanding that the claim form names as defendants the personal representatives of the deceased. Thus proceedings may be commenced against the estate of a deceased person but the proceedings so brought cannot be prosecuted until a person has been appointed to represent the estate of the deceased (see Re Amirteymour deceased [1979] 1 WLR 63).
A number of cases were cited to the judge. These included Shapland v Palmer [1999] 1 WLR 2068, a decision of this court in which it was held that the principle in Walkley applied only if the new proceedings were against the same parties. Accordingly, where the original proceedings had been against an employer on the grounds of vicarious liability for the acts of an employee, the subsequent proceedings against the employee were not within the Walkley principle. There was also cited to the judge another decision of this court, White v Glass (Kerr LJ and Hollings J, 17 February 1989, unreported), in which the original action had been against an unincorporated association and therefore improperly constituted and the new proceedings were against representatives of the unincorporated association. In that case, too, this court distinguished the Walkley case on the grounds, in this instance, that the first action had not been properly constituted. Accordingly, the plaintiff was held to be prejudiced by section 11 unless he was allowed to bring his new action under section 33. The judge was also referred to McEvoy v AA Welding and Fabrications Ltd [1998] PIQR 266. In that case proceedings were issued without leave against a company in liquidation. There were conflicting authorities on the question whether leave given after the proceedings were commenced could validate...
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