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||Neutral Citation Number:  EWCA Civ 577
||Case No: A3/2010/1536
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY
Claim No: 9LS30543
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD NEUBERGER, MASTER OF THE ROLLS
LORD JUSTICE HOOPER
LORD JUSTICE RIMER
Mr Tony Oakley (instructed by Bridge McFarland) for the Appellants
Mr Joshua Winfield (instructed by Roythornes LLP) for the Respondent
Hearing date: 22 February 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Rimer :
- The issue raised by this appeal turns on CPR Part 19.8(1). On 2 June 2010, five days before the trial was due to start, the defendant issued an application to have the claim struck out on the ground that the claimants had no title to sue. Two days later the application came before His Honour Judge Langan QC, sitting as a High Court Judge in the Chancery Division, Leeds District Registry. The claimants confessed and sought to avoid by admitting their lack of title but asking the judge to exercise the power they said he had under Part 19.8(1) to authorise them to continue the claim nonetheless.
- The judge held that he did not have the suggested power. He struck the claim out and ordered the claimants to pay the defendant's costs of the application, assessed at £4,750, and half of the balance of her costs of the claim, to be assessed. He recognised that the issue under Part 19.8(1) was not straightforward and gave permission to the claimants to appeal. He refused the defendant permission to appeal against his refusal to award her all her costs.
- By their appeal, and if wrong on the main point, the claimants also challenge the judge's order that they should have been ordered to pay as much as half of the defendant's costs of the claim. It seemed to me unfair that the defendant should have to meet that case whilst being deprived of the right to argue that the judge should have awarded her all her costs. So on 11 October 2010 I permitted her to cross-appeal against the costs order. Tony Oakley, who did not appear below, represented the claimants (appellants). Joshua Winfield, who did, represented the defendant (respondent).
- The claimants Rebecca Millburn-Snell, Sarah Millburn and Catherine Millburn are the daughters of the late Timothy Millburn, who died intestate on 7 March 2007. The defendant, Susan Evans, owns a property at Willow Farm, Thorpe Fendykes, near Wainfleet, Skegness ('Willow Farm').
- On 8 March 2007, the day after Mr Millburn's death, Bridge McFarland, solicitors who had previously been advancing an epistolary claim on his behalf against the defendant, wrote to her solicitors, Roythornes. Their letter included this: 'Our client's children are considering whether they wish to pursue the claim on behalf of their father at this stage, and we will advise you once a decision has been reached.' On 17 April 2007 they wrote further that they were 'instructed to act on behalf of the Personal Representatives of Mr Millburn deceased
' in relation to certain land. Correspondence followed with Roythornes, who headed their letters 'Mrs S.C. Evans -and- The Personal Representatives of Mr T.E.J. Millburn deceased'.
- The correspondence was inconclusive. On 30 April 2008, in a formal letter of claim, Bridge McFarland gave the names of the three proposing claimants and said they were 'the personal representatives' of the late Mr Millburn. They outlined the proposed claim, one based on the assertion that Mr Millburn and the defendant were business partners. The next letter we have is Bridge McFarland's of 17 July 2009, saying they had issued proceedings. In fact, the claim form was issued on 21 July 2009.
- The claim form was accompanied by Particulars of Claim, with paragraph 1 saying this:
'The Claimants are the personal representatives of Mr Timothy Eric James Millburn (Deceased) who died on 7th March 2007 and are entitled to bring this claim on behalf of his estate.'
There followed allegations amounting to a claim that, as a result of a relationship with the defendant lasting from 1989 to 2006, Mr Millburn had acquired a 50% beneficial interest in Willow Farm and the riding school business carried on there. The case was founded on the principles of proprietary estoppel, with the 19 sub-paragraphs of paragraph 9 listing the work Mr Millburn allegedly carried out at Willow Farm in reliance on assurances given to him. The pleading was signed by counsel, provided the name of the claimants' solicitors and bore statements of truth dated 23 June 2009 signed by each of the claimants by which they said that they believed that 'the facts stated in these Particulars of Claim are true.'
- A Defence, served on 28 August 2009 and accompanied by seven appendices of documents, disputed the claim. As to paragraph 1 of the Particulars of Claim, it pleaded that:
'The Defendant makes no admissions in respect of the contents of paragraph 1 of the Particulars of Claim.'
That put in issue the claimants' title to sue and required them to prove their title at the trial by producing a grant to them of letters of administration of Mr Millburn's estate. The defendant served a request for further information as to the allegations in the Particulars of Claim, which was answered in two stages, the second following an order of 16 December 2009 that also gave directions for disclosure, witness statements and trial. A further order of 21 December 2009 fixed the trial date as 7 June 2010, with a time estimate of four days, and gave directions for trial bundles and skeleton arguments. On 28 January 2010 the claimants gave their disclosure by a list which, despite the issue as to their title to sue, did not include a grant of letters of administration. An order of 20 April 2010 permitted the adducing of expert evidence as to the value of Willow Farm and extended to 30 April 2010 the time for witness statements.
- On 28 May 2010, five clear working days before the trial, Roythornes sent a fax to Bridge McFarland, referring to the defendant's non-admission of paragraph 1 of the Particulars of Claim (the claimants' title to sue). They asked for production of a certified copy of the grant of probate (if any grant existed, it would in fact have been a grant of letters of administration). Bridge McFarland's fax reply on the same day read thus:
The right of the Claimants to act as Personal Representatives has never been challenged by you. No Grant of Probate was taken out. It is permissible for persons to act as Personal Representatives either for or against a Trustee etc and we can find nothing in the rules (particularly CPR 19) that prevents an action continuing. CPR 19.8 merely requires that if a Defendant dies then the Claimant should apply for a person to be appointed and that seems to be the extent of the rule. This was a matter that we canvassed with Counsel long ago who concurred that it was suitable to pursue the claim in the form "Personal Representatives of the Deceased".
The three Claimants are the only children of the Deceased. They are the only persons entitled to make the claim. If the claim is successful the Court can direct that Probate should be applied for.
- That unimpressive reply cut no ice with the Roythornes, who on 2 June 2010 emailed Bridge McFarland to say that, with neither a will nor a grant, the claim was fatally flawed and the defendant was going to make an application to have it struck out. An application notice was issued that day. The ground was that the claimants were purporting to sue as the personal representatives of their late father, who had died intestate, yet had neither sought nor obtained a grant of letters of administration of his estate.
CPR Part 19
- The issue before the judge arose under CPR Part 19, headed 'Parties and Group Litigation'. Part 19.8 is of direct relevance and provides:
19.8(1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order
(a) the claim to proceed in the absence of a person representing the estate of the deceased; or
(b) a person to be appointed to represent the estate of the deceased.
(2) Where a defendant against whom a claim could have been brought has died and
(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 as 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.
(4) Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.
(5) Where an order has been made under paragraphs (1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.'
The judge's judgment
- The application came before the judge on the Friday before the Monday on which the trial was due to start. He had, therefore, to make an immediate decision and expressed regret that time did not allow him to give the more careful consideration to the issue that he would have wished. His judgment is, however, typically clear, well reasoned and cogent. He said that, subject only to any help that the claimants might derive from the CPR, there is no doubt that the claim would have been struck out as a nullity. Nor would it have helped the claimants to obtain a grant of administration subsequent to the issue of the claim, since such a grant (unlike a grant of probate) would not have related back so as to validate the proceedings. The judge said that was supported by a host of cases and referred to Ingall v. Moran  KB 160.
- Turning to the CPR, he first rejected the suggestion that Part 17.4(4) (to which I shall come) provided any help to the claimants (nor does it appear that any point on it was pressed). He turned to Part 19.8 and pointed out that, over the years, the editors of Civil Procedure had evinced some uncertainty as to whether Part 19.8(1) provided any assistance to those in the position of the claimants. The 2000 edition suggested that it did not, whereas the 2009 and 2010 editions suggested that it did (as does the 2011 edition). The judge expressed his own conclusions as follows:
'14. It is said for the claimants that Mr Millburn was "a person who had an interest in a claim." Indeed, prior to his death, solicitors were pressing that claim in correspondence with the defendant or those representing her. He therefore falls quite easily within the scope of CPR 19.8(1). The defendant would confine the scope of the word "claim" to a claim which was on foot in the sense that proceedings had been issued prior to the death of the claimant. It would, it is said, be wrong to give the ambiguous language of CPR 19.8(1) a construction which would overturn the long established principles exemplified by cases such as Ingall v. Moran. The defendants contrast CPR 19.8(1) with CPR 19.8(2), the latter provision expressly, and not just by arguable implication, deals with a situation in which a claim has not been brought. Further, while there is an obvious need for a provision such as CPR 19.8(2) in a situation in which what may be called a defence estate is unrepresented, because otherwise a claim cannot be brought at all, there is no such need where the death is that of a prospective claimant. Where it is a prospective claimant who has died, a claim can quite easily be constituted simply by obtaining a grant of letters of administration.
15. The matter is, as I have indicated, far from easy, and whichever way I were to decide it, I would readily give permission to appeal. After some hesitation, I have to say that I prefer the submissions for the defendant. The reasons are those which I have just rehearsed. First, I do not think that the language of CPR 19.8(1) is powerful enough to overturn the effect of a long series of decisions, or to convert an action which had been ex initio a nullity into one which is competent to proceed to trial. Secondly, I am impressed by the submissions made as to the contrast between 19.8(1) and 19.8(2), with particular reference to the absence of any need for an extensive interpretation of the former provision.
16. [Counsel for the claimants] raised an argument based on acquiescence. The defendants, it is said, have allowed this action to trundle along towards trial, and only at the last minute, and with a remarkable absence of the promptness with which applications to strike out should be made, have they thought fit to make the move made earlier this week. That would, in my submission, be a powerful consideration were my conclusion to have been that the power under 19.8(1) had arisen, and it had been said by the defendants that the court should not exercise its discretion under the rule in favour of the claimants. I do not, however, think that an argument based on acquiescence has weight in a situation in which I have been compelled to hold that the action is a nullity and that the defect is irremediable. The points raised on acquiescence may, however, have considerable bearing on issues as to costs.'
- It is agreed that Judge Langan was correct that, subject only to any help that the claimants may derive from Part 19.8(1), their claim was a nullity that must be struck out and could not be retrospectively validated by a grant of letters of administration. That is because whereas an executor derives his title to sue from the will and not from the grant of probate -- and so can validly sue before obtaining a grant (although he will have to obtain it later in order to prove his title) -- an administrator derives his title to sue solely from the grant of administration (see Chetty v. Chetty  1 AC 603, at 608, 609, per Lord Parker of Waddington).
- The latter point is well illustrated by this court's decision in Ingall v. Moran  KB 160. There the plaintiff issued his writ in September 1942 purportedly as the administrator of the intestate's estate, but did not obtain a grant of administration until November 1942. This court, allowing the defendant's appeal against the judgment the judge had entered against him, held that the grant did not retrospectively validate the writ, nor could the writ be the subject of an amendment validating the plaintiff's claim to sue as administrator. The grant enabled the plaintiff to issue a new writ, but that was all. Scott LJ, at 165, described the original writ as 'incurably a nullity. It was born dead, and could not be revived.' Luxmoore LJ, at 169, said that the plaintiff's action:
was incompetent at the date when the writ was issued, and that the doctrine of the relation back of an administrator's title to his intestate's property to the date of the intestate's death when the grant has been obtained cannot be invoked so as to render an action competent which was incompetent when the writ was issued.'
Goddard LJ, at 172, said that 'this action was, and always remained, incompetent, and judgment ought to have been entered for the defendant.'
- 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. That principle was recognised and applied by this court in Hilton v. Sutton Steam Laundry  KB 65 (per Lord Greene MR, at 71) and Burns v. Campbell  1 KB 15 (per Denning LJ, at 17, and Hodson LJ, at 18). In Finnegan v. Cementation Co. Ltd  1 QB 688, Jenkins LJ said, at 700:
'As to the law, so far as this court is concerned it seems to me to be settled by Ingall v. Moran and Hilton v. Sutton Steam Laundry and, I may add, by Burns v. Campbell, that an action commenced by a plaintiff in a representative capacity which the plaintiff does not in fact possess is a nullity, and, further, that it makes no difference that the claim made in such an action is a claim under the Fatal Accidents Acts which the plaintiff could have supported in a personal capacity as being one of the dependants to whom the benefit of the Acts extends.'
- Before coming to Part 19.8(1), I should refer to what this court said about Ingall in Haq v. Singh and another  EWCA Civ 957;  1 WLR 1594. The point there in issue arose under CPR Part 17.4, a rule made under the provisions of section 35 of the Limitation Act 1980 and which, by its own terms, expressly applies only to cases where a period of limitation has expired. Part 17.4 provides, so far as material, that:
'(1) This rule applies where
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.'
- In Haq a discharged bankrupt brought in 1993 a claim for damages, whereas the relevant cause of action had upon her bankruptcy vested and remained in her trustee. An amended defence served in 2000 asserted her lack of capacity to sue, whereupon she obtained an assignment from her trustee of the cause of action. The issue was whether the judge was right to permit her to amend to plead the assignment. He had so held on the basis that before the assignment she had no capacity to sue, whereas after the assignment she had the capacity to sue as the trustee's assignee and therefore the case was within Part 17.4(4). This court allowed the defendants' appeal, holding that since both before and after the assignment the claimant was suing in a personal capacity, her capacity had not altered and so she was not entitled to amend. Arden LJ, however, also expressed the obiter view, at paragraph , that:
'The effect of CPR r 17.4(4) is therefore to remove the effect of Ingall v. Moran  1 KB 160, the technicalities of which Singleton LJ in Finnegan v. Cementation Co Ltd  1 QB 688, 699 described as a "blot upon the administration of the law."
Pill LJ expressed like obiter views at paragraphs  to .
- For myself, I respectfully question the correctness of that assessment of the effect of Part 17.4(4). First, it is not easy to see how a claim which, as Ingall explained, is born dead and is a nullity can be given life by an amendment. Second, I am not confident that it was the Ingall principle pure and simple that was the 'blot' to which Singleton LJ was referring. He was, as I read Finnegan (see  1 QB 688, at 699), referring rather to the apparent injustice of the instant case (like Hilton, supra) in which a plaintiff who could have sued in her personal capacity under the Fatal Accidents Acts found herself barred by time from suing at all because she had mistakenly sued in time exclusively as administratrix when she had no capacity to do so. Third, as is pointed out in Executors, Administrators and Probate, Williams, Mortimer and Sunnucks, 19th Edition, 2008, in Note 68 to paragraph 8-10, Part 17.4 applies only where a period of limitation has expired and:
'Clearly, it would be an extraordinary result if proceedings could be saved by amendment where a limitation period has expired, but not where such a period had not expired. However, it is not clear on what statutory authority an amendment in the latter case is permitted and, without such authority, it is difficult to see how the earlier authorities (see fn. 65 above [which includes Ingall, Hilton and Finnegan]) can be ignored particularly as they deal with substantive rather than procedural law. Certainly the somewhat ambiguous words at the end of s. 35(7) of the Limitation Act 1980 would not seem sufficient for this purpose.
It may be, therefore, that the true effect of CPR r. 17.4(4) is much more limited than the Court of Appeal in Haq suggests
- Having expressed my doubts about those observations in Haq, I regard it as unnecessary to say more about them. The judge was, I consider, right to regard Haq as providing no guidance for the purposes of the application before him. First, at the time of the application, the claimants had not obtained a grant and so no amendment application was before him. Second, no limitation period had expired and Part 17.4(4) applies only where one has. Mr Oakley expressly disavowed any reliance on Haq.
- Turning to Part 19.8(1), we were informed by Mr Oakley that, since the matter was before the judge, one of the appellants has obtained a grant of letters of administration of the intestate's estate. He conceded that, had the appellants had such a grant at the date of the hearing below, Part 19.8(1) would have been inapplicable (it applies only where there is no relevant 'personal representative') and so the judge would have been compelled to strike the claim out, as he anyway did. I need say no more about this development than that I regard it as odd (i) that this court is now being asked to exercise a jurisdiction under Part 19.8(1) to reverse the judge's order even though it is accepted that the current facts are fatal to its exercise; and (ii) that, in relying as they did on Part 19.8(1), the appellants should, so their argument runs, have been better off before the judge without a grant of representation than with one, even though its obtaining was in principle straightforward.
- There are also further difficulties in the claimants' path. The first is that Mr Oakley also conceded that the reference to a 'claim' in Part 19.8(1)(a) is a reference to a claim the subject of current proceedings. He was not giving much away there, since that appears to be the obvious sense of 'the claim' as there used. Part 19.8(1) is, I consider, clearly concerned only with (i) proceedings that have already been issued, and (ii) what orders for their further prosecution may be made in circumstances in which the conditions described in its opening words are satisfied.
- If, however, 'claim' in Part 19.8(1)(a) means 'issued proceedings', one might think that the same word must have a like meaning in its prior, and first, use in Part 19.8(1). If so, the appellants face a problem in fitting the facts of the present case comfortably into the rule since on one (perhaps not unreasonable) view the intestate, Timothy Millburn, could not during his life have had any 'interest in [the current proceedings]' because, by the time of their issue, he was dead. The most that might be said was that during his life he had an interest in a cause of action that, following his death, became the subject of the claim that the claimants issued.
- Mr Oakley's submission was that he did have an interest of such a nature and that it was a sufficient 'interest in a claim' within the meaning of the opening words of Part 19.8(1) to mean that he was 'a person' of the nature there described. If he was right about that, it followed, he said, that the case fell within the four corners of Part 19.8(1) and the judge had jurisdiction to make an order for its further prosecution. The type of order that Mr Oakley suggested the judge could and should have made was one appointing the appellants to represent the estate of the intestate (see Part 19.8(1)(b)).
- In developing that submission Mr Oakley pointed out that the words 'a person who had an interest in a claim' at the beginning of Part 19.8(1) were plainly chosen carefully and he said that they deliberately cast the net wider than would, for example, the words 'a person who was a party to the proceedings'. If, he said, the intention of Part 19.8(1) was simply to provide a rule dealing with the court's jurisdiction on the death of a party, it could and would easily have said so, whereas it did not. In support of his submission that the words used bore the wider meaning for which he contended, Mr Oakley pointed out (and Mr Winfield agreed) that Part 19.8(1) replaced the former RSC Ord 15, r. 15(1), which had (in essentially similar terms) itself replaced the earlier RSC Ord 16, r. 46. The latter read, so far as material:
'If in any cause, matter or other proceeding it shall appear to the court or a judge that any deceased person who was interested in the matter in question has no legal personal representative, the court or judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for all the purposes of the cause, matter or other proceeding
- That rule fell to be considered by this court in Lean v. Alston  KB 467, upon which Mr Oakley placed reliance. The plaintiff, Lean, was a pillion rider on a motorcycle driven by Hawkins. The motorcycle collided with a car driven by the defendant, Alston. Lean was injured and Hawkins was killed. Hawkins died intestate and his widow refused to take out a grant of administration. Lean sued Alston, who wanted to serve a third party notice on a representative of Hawkins's estate. Hayden agreed to act as such a representative if indemnified as to costs. The Master ordered him to be so appointed and gave leave to Alston to serve the third party notice on him. On Lean's appeal, Denning J reversed that order. This court allowed Alston's appeal and restored the Master's order.
- Lean's argument was that Ord 16, r. 46 had no application because as between Alston and Hawkins's widow or his estate there was no cause or matter pending: in other words, the rule only enabled the appointment of a representative of a party who had died. That argument did not prevail. Scott LJ pointed out that the rule was but one application of an inherent power of the court exercised by the Court of Chancery and expressed in section 44 of the Chancery Procedure Act 1852 by which, as he said at 471, 'the Court of Chancery and its successor, the Chancery Division, always had the power to appoint a person to represent any particular interest in any proceeding where it thought right to make that appointment.' Morton LJ added this, at 474:
'Finally, within my own experience, although no case was cited to us on the point, it is very common in the Chancery Division for a person to be appointed to represent the estate of a deceased person under this rule, when such deceased person has never been a party to the litigation. One of the most common cases is where there is a doubt as to the true construction of a will; the trustees of the will take out an originating summons and it is their duty to make parties to that originating summons the persons who are interested in putting before the court various different constructions of the will. It often happens that some person who, if alive, would have a very direct interest in putting an argument before the court is dead, and has no legal personal representative. In these circumstances, it is the usual practice for the Chancery Division to appoint a person to represent the estate of the deceased person under this rule. I have never heard it suggested until to-day that that could not be done unless the deceased person had been a party to the litigation at some stage,'
- In agreement with both counsel, I accept that Part 19.8(1) is the modern, more simply expressed, successor of the rule considered in Lean. In a case today raising facts similar to those in Lean, I am prepared to assume that it would be within the court's jurisdiction under Part 19.8(1)(b) to make the type of order made in Lean (although it may be that it could alternatively be made under Part 19.8(2), the modern successor to the former rule RSC Ord 15, r.6A which dated from 1970). I am therefore prepared to accept that the phrase 'a person who had an interest in a claim has died' in Part 19.8(1) does not refer exclusively to a deceased person who was formerly a party to the claim and to that extent I would agree with Mr Oakley's submission. Nor did I understand Mr Winfield to argue otherwise. He too accepted that the purpose of the quoted words was to enable the joinder during the currency of proceedings of someone to represent the interest of a deceased person who had an interest in the claim, but who may not have been a party to it.
- Accepting all this, where I have difficulty is in seeing how any of it helps the appellants. In my judgment the flaw in their case is exposed by the decision in Ingall. What that case 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 Part 19.8(1) may empower, it follows that the claim the appellants issued was equally an incurable nullity. The logic of Mr Oakley's submission is however that the force of Part 19.8(1) is to confer a jurisdiction upon the court to turn such a nullity into valid proceedings which may be pursued to judgment.
- I am unable to accept that and, in agreement with the judge, consider that Part 19.8(1) has no application to the present case. The appellants' invocation of Part 19.8(1) was responsive to the defendant's strike out application. Logically, however, if they are right about Part 19.8(1), they could (indeed should) promptly after issuing their claim form have applied to the court for an order that the nullity they had thereby conceived should have life breathed into it by way of an order that they be appointed to represent the estate of the deceased intestate and the claim permitted to proceed to trial. The reason that any such application should and would have failed is because Part 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 Part 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 Part 19.8(1) as providing an optional alternative to such ordinary course. I would dismiss the appeal on the Part 19.8(1) issue.
- A further ground of appeal was that, if the appellants were wrong about the application of Part 19.8(1), the defendant had acquiesced in their pursuit of the claim. Mr Oakley realistically conceded however that, unless the defendant could be shown to have known of the appellants' lack of title to sue at an early stage in the proceedings -- which he admitted they could not -- the argument was difficult; and he gracefully forbore to press it. In my judgment, there was nothing in the argument, since there is no basis upon which the judge could have been satisfied on the facts that there was any acquiescence. I would dismiss this ground of appeal too.
- I come finally to the question of costs. The judge's costs judgment reflected that he was influenced in his decision to award the defendant merely half her costs of the claim because the guidance in the White Book was to the effect that strike out applications should be made promptly, whereas the defendant had allowed the litigation 'to trundle on to the eve of trial' and made the application too late. His view was therefore that, because of the delay, she should suffer a discount 'on the heavy side' to her recoverable costs.
- In challenging that exercise of the discretion, Mr Winfield submitted that (i) the judge appeared to have ignored that the claim was a nullity (he pointed out that in Ingall this court awarded the successful defendant his costs of the appeal and below); (ii) the claimants had asserted their title to sue as personal representatives in paragraph 1 of the Particulars of Claim, which they had supported by a statement of truth; (iii) whilst the defendant had declined to admit that assertion, the reality is that it is only in a tiny minority of cases that it will turn out that the claimants do not have the title they assert; (iv) in the ordinary course the primary focus of the defendant's attention in the lead up to trial is going to be on the substantive issues raised by the statements of case rather than on the claimant's claimed title to sue; and (v) there was no basis on which the judge could criticise the defendant for not making the application earlier since there is no suggestion that the defendant knew of the flaw in the claimants' title any earlier.
- I regard these points as collectively compelling. In particular, I find it surprising that claimants who are so imprudent as to lend their names to an untruthful statement of claimed truth that they had a title to sue when they did not should be heard to criticise a misled defendant for not exposing their own untruth at an earlier stage -- criticism advanced, moreover, without any evidence suggesting that the defendant was in a position to do so at any such stage. In my judgment, the judge was in error in criticising the defendant for not making the application earlier and that error undermined the basis on which he exercised his discretion as to costs.
- I consider, therefore, that it is open to this court to exercise afresh the decision as to the incidence of the costs below. Since I consider that the claim is one that should never have been brought, and ought to remain struck out as a nullity, I regard the fair order to make as to the costs of the claim (other than that in respect of the application costs, which will remain undisturbed) is that the claimants should pay all the defendant's costs of the claim so far as they have been wasted. I put it like that because during the argument we discussed with counsel our provisional thoughts that it would be unsatisfactory simply to order the claimants to pay all the defendant's costs of the claim. That is because it is not just possible, but probable, that now that one of the appellants has obtained a grant, a properly constituted claim will be brought against the defendant. If so, such claim could, when issued, and subject to appropriate directions being given, be ready for trial almost straight away. That is because all the steps taken in the old claim could, were we so to direct, be treated as steps in the new claim; and the costs of those steps have already been incurred. It would, I consider, be absurd if the commencement of a new claim should require the parties solemnly to start again from scratch in a stately progress towards a trial and incur a repeat set of costs in doing so. Having said that, if a new claim is to be made and such a direction is given, it is of course inevitable that (quite apart from the trial costs) further costs will still be incurred in it.
- I would therefore propose an order along these lines. If within two months the (or one or more of the) appellants issue a like claim form against the defendant, all steps that were taken in the old claim subsequent to its issue shall be deemed to be steps taken in the new claim and the costs of such steps shall (subject to the wasted costs provision to which I shall come) similarly be deemed to be incurred in the new claim. The costs of the new claim will be costs in the claim, but the appellants must pay the defendant all costs incurred by her that have been wasted by reason that the first claim was a nullity. The assessment of any such wasted costs will necessarily have to be the subject of a detailed assessment following the trial of any new claim or pursuant to any further order in the meantime. If no new claim is commenced within two months, the appellants will simply be ordered to pay the defendant her costs of the struck out claim.
- I recognise that these directions are expressed in general terms but hope that their spirit is sufficiently clear. Their detailed working out will require some careful drafting, to which I would invite counsel to turn their minds.
- I would dismiss the appellants' appeal, allow the cross-appeal to the extent indicated and make the further directions also indicated.
Lord Justice Hooper :
- I agree.
Lord Neuberger MR :
- I also agree.
- 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  KB 160, it is a well-established principle, and, once one concludes that it has not been abrogated by CPR Part 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 well understand how the judge reached his decision on costs, given the technical nature of the point raised by the defendant and the late point at which it was raised. However, as Rimer LJ has explained, closer analysis shows that neither reason justified depriving the successful defendant of her costs. Furthermore, assuming there is no reason preventing one or more of the claimants bringing fresh proceedings, an order along the lines proposed in para 36 should ensure that the costs involved are much smaller than might have been envisaged by the judge.
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