“A party may amend their statement of case, including by removing, adding or substituting a party, at any time before it has been served on any other party.”
“(1) If a party has amended their statement of case where permission of the court was not required, the court may disallow the amendment. (2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on them.”
“In my view the authorities are clear that the Court is concerned with whether the Defendants have an arguable case on limitation and whether that case is prejudiced by the operation of the principle of relation back. The agreed position in this case was that the Defendants’ case on limitation i.e. that it expired by 2009 was arguable. If the amendments are allowed, that case is not prejudiced by the operation of the principle of relation back. The Claimants’ counter position is irrelevant to the question of whether the Defendants’ case on limitation is prejudiced.”
“In the present case the pleaded case of the Defendants is that in relation to limitation, the limitation period expired in 2009 and thus on its case the operation of relation back will make no difference to its case. On its case the original claim is out of time and the amended case will be equally out of time regardless of the date it is (deemed to be) issued and thus there is no prejudice to the Defendants’ limitation case by the new claim.”
“In my view, in circumstances where the Defendants’ pleaded case is that the limitation period expired in 2009, the Claimants have shown that the Defendants do not have a limitation defence which would be prejudiced by the operation of the principle of relation back.”
“The Defendants have in my view chosen not to bring the application within the time period allowed and waited for well over a year before telling the Claimants that they might challenge the amendments on the basis of limitation thereby potentially putting some Claimants outside the limitation period on the Claimants’ case. The Defendants’ substantive application to disallow the additional Claimants is not to protect its limitation defence but if successful would deprive the bulk of the Claimants of their claim. In my view that is not a just result. In my view the just position in this case is that the Defendants should be entitled to bring their limitation defence to trial but that equally the Claimants should be allowed to have their claims litigated. For these reasons (if I am wrong on the substantive issue of limitation such that it is necessary to decide this issue) the application for relief from sanctions is refused.”
“Except as provided by section 33 of this Act or by rules of court, neither the High Court nor the county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.”
“[Counsel for the defendants] submitted, and in my view rightly, that in its approach to Order 15 Rule 6 [i.e. the predecessor ofCPR 19.5 ] the court should be careful to avoid the evil which section 35(3) was passed to prevent, namely prejudice to defendants losing protection from the Limitation Act by the reference back to the date of the original writ of any new claim which might otherwise be added. Leave to add a new party should not be given unless it can be shown that the defendant did not have a reasonably arguable case on limitation which would be prejudiced by the additional new claim. I agree with Watkins LJ that … the appellants have at least a strong arguable case that the damage was suffered more than six years before the date of the application to amend and that, therefore, this application should not have been granted. Any prejudice to the applicant plaintiffs can to a large extent be mitigated, if it exists, by having recourse to the ordinary process of issuing a fresh writ. If the defence of limitation is not available to the defendants then no harm is done. If there is a defence of limitation which has arisen since the date of the original writ but before the application for leave to amend the defendants will have been prejudiced to the extent of something like two years, a period during which the defence under the statute of limitations would not be available to them as the date of the new claim relates back to the date of the original writ. In such a case the material date will be the date on which the new writ is issued. The only prejudice to the plaintiffs would arise out of the extra period available under the Limitation Act arising out of the delay between the date of the application for leave to amend and the date upon which the new writ is issued. This delay arises directly from the application for leave to amend the proceedings. This prejudice, in my view, properly falls upon the plaintiffs.”
“In that case the plaintiffs issued a writ against six defendants. Two and a half months later, before the writ had been served on any defendant, they amended it without leave by adding a further four defendants. One of those defendants sought an order under R.S.C., Ord. 15, r. 6(2) that he should cease to be a party to the action. The basis of his application was that at the time when the writ was amended the limitation period of six years had already expired. The registrar refused the application but the judge allowed it on appeal. The plaintiffs appealed to this court. In his judgment, after quoting the relevant parts of section 35, Glidewell L.J. said, at p. 111: ‘It follows, therefore, that if at the time when a further defendant is added to an action by amendment he has a limitation defence which he could raise if the plaintiff then issued a new writ against him, but if that defence would not have been available to the defendant at the time when the writ was originally issued, he should not be joined as a defendant because he would thus be deprived of a defence which would then have been available to him.’ He then went on to say, however, that there was no evidence in that case that if the claim was statute-barred when the writ was amended to add the additional defendants, it was not so barred when the writ was originally issued. In other words the issue between the parties was whether the cause of action had arisen over six years before the date when the writ was originally issued, or on a much more recent date as the statement of claim alleged, that is to say some three years before the issue of the writ. Glidewell L.J. continued: ‘Of course, if the second is correct there is no question of limitation. If the first is correct there would have been a limitation defence if Hallams had been a party from the start.’ He did not say this in terms, but it is thus apparent that in that case section 35(1) gave no advantage to the plaintiffs. He concluded, at p. 113: ‘In my judgment, the proper approach in circumstances such as these is for the court to ask itself: if at the time when the writ was amended the plaintiff had instead issued a fresh writ against the same defendant, could that defendant have successfully applied to strike out the action on the ground that the limitation period had expired and the action was thus an abuse of the process of the court? If the answer to that question is “No,” then I can see no reason why exactly the same result should not be achieved by amending the writ to add the defendant as a defendant instead of issuing a new piece of paper. Therefore, in my view, the test should be the same.’” ‘It follows, therefore, that if at the time when a further defendant is added to an action by amendment he has a limitation defence which he could raise if the plaintiff then issued a new writ against him, but if that defence would not have been available to the defendant at the time when the writ was originally issued, he should not be joined as a defendant because he would thus be deprived of a defence which would then have been available to him.’ ‘Of course, if the second is correct there is no question of limitation. If the first is correct there would have been a limitation defence if Hallams had been a party from the start.’ ‘In my judgment, the proper approach in circumstances such as these is for the court to ask itself: if at the time when the writ was amended the plaintiff had instead issued a fresh writ against the same defendant, could that defendant have successfully applied to strike out the action on the ground that the limitation period had expired and the action was thus an abuse of the process of the court? If the answer to that question is “No,” then I can see no reason why exactly the same result should not be achieved by amending the writ to add the defendant as a defendant instead of issuing a new piece of paper. Therefore, in my view, the test should be the same.’”
“We now wish to make it clear that, though the test applied in Leicester Wholesale Fruit Market Ltd. v. Grundy [1988] 1 W.L.R. 107 was the correct test in the circumstances of that case, in which section 35(1) gave the plaintiff no advantage, it was unnecessary for the decision in that case to disagree with what Purchas L.J. said in Grimsby Cold Stores Ltd. v. Jenkins & Potter (1985) 1 Const.L.J. 362, 370. Our view is that Judge Hicks was correct in concluding that where section 35(1) does, or may well, give the plaintiff an advantage a different test, namely that enunciated by Purchas L.J. in the Grimsby Cold Stores case, should be applied. In such a case, leave to amend by adding a new claim should not be given unless the plaintiff can show that the defendant does not have a reasonably arguable case on limitation which will be prejudiced by the new claim, or can bring himself within R.S.C., Ord. 20, r. 5.”
“66. If a claimant seeks to raise a new claim by amendment and the defendant objects that it is barred by limitation, the court must decide how to proceed. There are two options. First the court could deal with the matter as a conventional amendment application. Alternatively, the court could direct that the question of limitation be determined as a preliminary issue. 67. If, as is usually the case, the court adopts the first option, it will not descend into factual issues which are seriously in dispute. The court will limit itself to considering whether the defendant has a ‘reasonably arguable case on limitation’: see [Welsh Development Agency] at 1425 H. If so, the court will refuse the claimant’s application. If not, the court will have a discretion to allow the amendment if it sees fit in all the circumstances. 68. If the court refuses permission to amend, the claimant’s remedy will be to issue separate proceedings in respect of the new claim. The defendant can plead its limitation defence. The limitation issue will then be determined at trial and the defendant will not be prejudiced by the operation of relation back under section 35 (1) of the 1980 Act. 69. This leads on to a separate and important point. If a claimant applies for permission to amend and the amendment arguably adds a new claim which is statute barred, then the claimant should take steps to protect itself. The obvious step is to issue separate proceedings in respect of the new claim. This will have the advantage of stopping the limitation clock on the date of the new claim form. If permission to amend is granted, then the second action can be allowed to lapse. If permission to amend is refused, the claimant can pursue his new claim in the second action. The two actions will probably be consolidated and the question of limitation can be determined at trial.”
“Working from first principles … it is plain that, provided the defendant can show a prima facie defence of limitation, the burden must be on the claimant to show that the defence is not in fact reasonably arguable. The claimant is after all in effect inviting the court to make a summary determination that the defence of limitation is unavailable. If the availability of the defence of limitation depends on the resolution of factual issues which are seriously in dispute, it cannot be determined summarily but must go to trial. Hence it can only be appropriate at the interlocutory stage to deprive a defendant of a prima facie defence of limitation if the claimant can demonstrate that the defence is not reasonably arguable.”
“To any objective outside observer his conduct [i.e. that of Mr Abu-Aljadail’s solicitor], and accordingly that of Mr Abu-Aljadail from the giving and receipt of instructions on 3 April to the letter of 10 May—a period of over five weeks—was only consistent with an acceptance of the jurisdiction of the court to determine the claims of AMS on their merits. A defendant who intends to challenge the jurisdiction of the court does not seek an extension of time for his defence, he does not advance a defence on the merits in the form of the settlement agreements, nor does he threaten to strike out the claim if the claimant refuses to discontinue it.”
“the authorities … make clear the very great degree of caution which a party who is challenging jurisdiction must exercise. … It certainly seems possible that an argument that challenging the default judgment in partnership with a jurisdictional challenge might be said to amount to a submission to the jurisdiction in circumstances where the authorities tend to suggest that taking any step in relation to the merits of the claim can amount to a submission (see Global Mutimedia International v ARA Media Services[2006] EWHC 3612 , [2007] 1 All E.R. (Comm) 1160 and Deutsche Bank AG London Branch v Petromena ASA[2015] EWCA Civ 226 [2015] 1 WLR 4225 ). Accordingly it seems to me that the Fifth Defendant was entitled to form the view that it was unsafe to apply to set aside the default judgment now and the course of action taken cannot fairly be described as wrong. On the contrary, challenging jurisdiction was logically the first step, whether or not it might have been combined with a very cautiously worded challenge to the default judgment.”
“21. These rules do not create sanctions but apply when a sanction exists. Rule 3.8 operates to make clear that when a sanction is provided for there is no need to come back to court for an order imposing it. It takes effect and the onus on taking action is the other way round. The party in default needs to apply for relief from it. Rule 3.9 provides for the principles to be applied in applications for relief from sanctions, now explained fully in Denton v TH White Ltd (Practice Note)[2014] 1 WLR 3926 itself. Denton is not concerned with identifying whether or not a relevant sanction exists. The sanction may be expressly provided for, in which case no difficulty arises, but there are also cases in which, as Moore-Bick LJ put it in Salford Estates (No 2) Ltd v Altomart Ltd (Practice Note)[2015] 1 WLR 1825 at para 13, ‘the courts have recognised the existence of implied sanctions capable of engaging the approach contained in rule 3.9 and therefore now the [Denton] principles’. This has been applied to the filing of a notice of appeal (in Sayers v Clarke Walker (Practice Note)[2002] 1 WLR 3095 per Brooke LJ). The idea in Sayers is that although the rule providing for the time limit has no express sanction connected to it, it is implicit that without the relief (ie an extension of time) the appeal could not be brought, which amounts to a sanction. In Salford itself this same principle was extended to apply to a respondent’s notice. 22. Many kinds of application for an extension of time in cases of breach do amount to applications for relief from sanctions, such as an application for an extension having failed to serve witness statements in the time ordered (Chartwell Estate Agents Ltd v Fergies Properties SA [2014] CP Rep 36). Similarly an application to set aside a default judgment has the same character (see the recent FXF v English Karate Federation Ltd (Practice Note)[2024] 1 WLR 1097 ). However it does not follow that breach of any rule, practice direction (‘PD’) or order which required something to be done within a certain time necessarily requires a relief from sanctions application, and in that respect I agree with both Martin Spencer J in Mark v Universal Coatings & Services Ltd[2019] 1 WLR 2376 at para 54 and with Judge Paul Matthews sitting as a judge of the Chancery Division in In re Wolf Rock (Cornwall) Ltd [2020] Bus LR 2348 at para 26. Simply because a rule, PD or order uses a word like ‘must’ does not on its own engage the relief from sanctions doctrine. As Martin Spencer J observed in Mark v Universal, one needs to look at what the default position would be if no extension of time (or other relief) was granted. If a sanction is in effect, either as a result of the express terms of a rule, PD or order, or by implication, then relief is required, but if not, not. For example in the context of witness statements (see Chartwell), rule 32.10 provides that if a witness statement is not served in time the witness may not be called to give evidence, unless the court gives permission. This therefore makes provision for a sanction for failure to comply with the order setting a deadline for service of witness statements.”
“In summary, in my judgment, the general approach to working out whether a case is covered by r3.9 is to start by identifying if a rule, PD or order has been breached. If there is none then the rule does not apply. If there has been a breach then the next task is to identify any sanction for that breach which is expressly provided for in the rules, PDs or in any order. If there is no such express sanction then, outside the third category identified in FXF and the specific recognised instances of implied sanctions identified in Sayers, and Altomart (i.e. notices of appeal and respondent’s notices), there is no relevant sanction for the purposes of r3.9, and so that rule does not apply. Only if there is both a breach and a sanction does r3.9 apply. It is worth noting that these circumstances are all concerned with sanctions which take effect as a result of a breach without further intervention. The court can always decide later to impose a sanction for a breach, such as a fresh order expressed as an unless order or an order for costs thrown away, but for either of those things to happen, a fresh decision would been needed.”
“Bearing in mind the importance of clarity in the procedural framework to be followed by court users, the hurdle for identifying something as an unexpressed but implicit sanction must be a high one. It has been identified in the two circumstances mentioned in the cases above. I prefer to say that the scope for identifying any further implied sanctions over and above these two must be very narrow. Bearing in mind that the Denton ‘ethos’ may apply even when r3.9 is not engaged, the need for further extensions of this concept is likely to be very limited.”
“A party may amend their case, including by removing, adding or substituting a party, at any time before it has been served on any other party.”
“I accept that it could be said to place form over substance to accept that before service of the claim, new claimants can be added to the claim form (as decided in [Rawet v] Daimler) and claimants can be substituted (as contemplated expressly by the revisions toCPR 17.1 ) but that claimants cannot be substituted if the original claimant was deceased. However, in my view the Defendants must be correct in their analysis that you cannot substitute a nullity; there is nothing to be substituted.”
“there is no such discretion”, he said, “where the claim is a nullity”
“I, too, consider that Stewart J was right that the ‘wide discretion’ conferred by CPR Pt 3 cannot be used to validate a nullity.CPR r 3.10 applies in relation to ‘an error of procedure such as a failure to comply with a rule or practice direction’. Dyson LJ explained in Steele v Mooney[2005] 1 WLR 2819 thatCPR r 3.10 ‘gives a non-exhaustive definition of a procedural error as including a failure to comply with a rule or practice direction’ and that ‘procedural errors are not confined to failures to comply with a rule or practice direction’: see paras 18 and 20. Even so,CPR r 3.10 is not applicable where the proceedings that have purportedly been brought are to be regarded as a nullity.CPR r 3.10 allows existing proceedings to be regularised, not the creation of valid proceedings. It is not, to use words of Stewart J, ‘a cure-all for every defect however fundamental, whether or not it is one of law, and whether or not the authorities have previously determined that there is a nullity’.”
“The right of action of Trendtex against C.B.N. was a chose in action. It was reduced into the possession of Trendtex by the issue of the writ in the High Court in England. It was situate in England.”
“First, it is necessary to characterise the issue that is before the court. Is it for example about the formal validity of a marriage? Or intestate succession to moveable property? Or interpretation of a contract? The second stage is to select the rule of conflict of laws which lays down a connecting factor for the issue in question. Thus the formal validity of a marriage is to be determined, for the most part, by the law of the place where it is celebrated; intestate succession to moveables, by the law of the place where the deceased was domiciled when he died; and the interpretation of a contract, by what is described as its proper law. Thirdly, it is necessary to identify the system of law which is tied by the connecting factor found in stage two to the issue characterised in stage one. Sometimes this will present little difficulty, though I suppose that even a marriage may now be celebrated on an international video link. The choice of the proper law of a contract, on the other hand, may be controversial.”
“Subject to what I shall say in a moment, characterisation or classification is governed by the lex fori. But characterisation or classification of what? It follows from what I have said that the proper approach is to look beyond the formulation of the claim and to identify according to the lex fori the true issue or issues thrown up by the claim and defence. This requires a parallel exercise in classification of the relevant rule of law. However, classification of an issue and rule of law for this purpose, the underlying principle of which is to strive for comity between competing legal systems, should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system. Nor should the issue be defined too narrowly so that it attracts a particular domestic rule under the lex fori which may not be applicable under the other system: see Cheshire & North’s Private International Law, 12th ed., pp. 45–46, and Dicey & Morris , vol. 1, pp. 38–43, 45–48.”
“While it is convenient to identify this three-stage process, it does not follow that courts, at the first stage, can or should ignore the effect at the second stage of characterising an issue in a particular way. The overall aim is to identify the most appropriate law to govern a particular issue. The classes or categories of issue which the law recognises at the first stage are man-made, not natural. They have no inherent value, beyond their purpose in assisting to select the most appropriate law. A mechanistic application, without regard to the consequences, would conflict with the purpose for which they were conceived.”
“the available categories are those created by the common law rules of private international law; and the placing within one or more of them is done according by reference to the same rules – for those who find analogies helpful, English law designs the pigeonholes, and an English sorter decides which facts belong in which pigeonhole”
“When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of a full beneficial owner. What matters is that the court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets. Equity in fact calls into existence and protects equitable rights and interests in property only where their recognition has been found to be required in order to give effect to its doctrines.”
“(1) the entire ownership of the property comprised in the estate of a deceased person which remains unadministered is in the deceased’s legal personal representative for the purposes of administration without any differentiation between legal and equitable interests; (2) no residuary legatee or person entitled upon the intestacy of the deceased has any proprietary interest in any particular asset comprised in the unadministered estate of the deceased; (3) each such legatee or person so entitled is entitled to a chose in action, viz. a right to require the deceased’s estate to be duly administered, whereby he can protect those rights to which he hopes to become entitled in possession in the due course of the administration of the deceased’s estate; (4) each such legatee or person so entitled has a transmissible interest in the estate, notwithstanding that it remains unadministered.”
“(1) Subject to paragraph (3) below, where the deceased died domiciled outside England and Wales, a district judge or registrar may order that a grant, limited in such way as the district judge or registrar may direct, do issue to any of the following persons– (a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or (b) where there is no person so entrusted, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the district judge or registrar may direct; or (c) if in the opinion of the district judge or registrar the circumstances so require, to such person as the district judge or registrar may direct. … (3) Without any order made under paragraph (1) above– (a) probate of any will which is admissible to proof may be granted– (i) if the will is in the English or Welsh language, to the executor named therein; or (ii) if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person; and (b) where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased had died domiciled in England and Wales.” (a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled; or (b) where there is no person so entrusted, to the person beneficially entitled to the estate by the law of the place where the deceased died domiciled or, if there is more than one person so entitled, to such of them as the district judge or registrar may direct; or (c) if in the opinion of the district judge or registrar the circumstances so require, to such person as the district judge or registrar may direct. (a) probate of any will which is admissible to proof may be granted– (i) if the will is in the English or Welsh language, to the executor named therein; or (ii) if the will describes the duties of a named person in terms sufficient to constitute him executor according to the tenor of the will, to that person; and (b) where the whole or substantially the whole of the estate in England and Wales consists of immovable property, a grant in respect of the whole estate may be made in accordance with the law which would have been applicable if the deceased had died domiciled in England and Wales.”
“243. It seems to me on the evidence of Brazilian law that, notwithstanding the personal interest of the heir in the pool of assets, the rights of the heir are to act ‘to defend the assets and rights that compose the inheritance’ (paragraph 19 of Professor Schenk’s report). He is defending the interests of the whole (because he does not have an individualised interest) and this coupled with the fact that the proceeds do not automatically form part of the estate but are subject to the distribution process lead me to conclude that the heir cannot be said to have an absolute entitlement to the property. 244. … Professor Schenk accepted in cross examination that the estate exists from the death of the deceased, until the point at which the assets are distributed. On the Brazilian law evidence prior to the transfer of the litigation rights of the deceased person to the relevant heir as recorded in the Brazilian register (Formal de Partilha) the heir brings the claim on behalf of the estate as a whole and accordingly in my view this should be characterised as part of the administration of the estate.”
“229. The position is summarised by Professor Schenk in the Joint Expert Report at paragraph 3.1: ‘The rights are transferred to the heirs at the time of death (with the opening of the succession, according to the saisine principle). Since then, before the distribution, the heirs are the owners of the assets that make up the estate and, have concurrent standing to issue a claim, on their own behalf, in defence of the common patrimony. After distribution, when the indivisibility in respect of the shared property and rights ends, the standing belongs only to the heir to whom the property or right has been attributed.’ [emphasis added] 230. This is also clear from his evidence in paragraph 2.4 of the Joint Expert Report: ‘…The heirs are the true owners of the assets and rights that form part of the estate from the moment of death (saisine principle). The ownership of assets and rights and the status of indivisibility of the inheritance until its distribution, with the application of the legal rules of condominium (Art. 1,314 and 1,791, sole paragraph, CC), guarantee the heirs concurrent standing to bring a claim in their own name and in defence of the common heritage.’ [emphasis added] 231. In cross examination Professor Schenk’s evidence was as follows: ‘The Article 1.791, the single paragraph of the Brazilian Civil Code that declares the immediate transmission of rights to the heirs, this makes reference to the “condomínio” regime which is also in the Brazilian Civil Code. This allows clearly, especially when seen according to the constitutional principle of access to justice, that the heir can exercise the defence of his own interests compatible with the indivisibility principle. And we have also seen in the cases brought in my report that the defence -- the defence of their share is in their own name and as a consequence it involves the defence of the whole inheritance.’ [emphasis added] 232. In cross examination Professor Schenk was referred to paragraph 19 of his report: ‘The estate is the name given to the inheritance in Brazilian procedural law. The estate is a group of assets, with transitory existence, authorised by procedural law to sue and be sued until the distribution of the inheritance to the heirs. The estate does not have legal personality and, therefore, is not a holder of rights. The assets and rights comprising the estate belong to the heirs in joint ownership. The estate does not prevent the heirs from acting in their own name to defend the assets and rights that compose the inheritance, as we will see in item 6.1.2 of this Report.’ 233. Professor Schenk accepted that when the heir brings a claim, he is defending the assets and rights that compose the whole of the inheritance, not just for his benefit, but for the benefit of the other co-owners of those assets. [emphasis added] 234. Professor Schenk was also referred to paragraph 40 of his report in which he said that the proceeds of any claim will not automatically be part of the property of the heir but will be subject to the sharing and distribution amongst the heirs: ‘As a consequence of granting the heir authorisation for the judicial defence of the common patrimony (that belongs to all the other heirs in joint ownership until the distribution), the proceeds awarded to the heir in the legal claim will not be considered, automatically, as personal patrimony of that heir. The Brazilian succession law mandates that the asset or right granted in court (litigious rights or asset) be subjected to the inventário proceeding. This means the award would need to be shared among the other heirs, through individualisation of each heir’s shares via a distribution or new distribution, as explained in item 6.1.5 of this Opinion. This legal requirement aims at protecting the interests of the heirs who chose not to file a claim in defence of the common patrimony.’ [emphasis added] 235. However Professor Schenk’s evidence in cross examination was that the heir was nevertheless exercising his own rights and not representing the interests of the estate. ‘… the concurrent standing of the heir in reference to the estate does not mean the heir is necessarily representing the interests of the inheritance in court. The estate represents the indivisible mass in court, the heir acts in his own or her own behalf, defending their own interests. And as I will explain in paragraph 40 of my opinion, because the heir is defending his own share of the inheritance, defending the inheritance as a whole, such benefit might be attained and will be shared amongst other co-heirs. In the inventário proceeding, of course, or in another inventário of redistribution. But these are different elements representing the estate in court and the exercise by the heir of his or her own right, his or her own prerogative, to defend his or her interests.’ 236. It was put to Professor Schenk that the heir is not just defending his own interest but the interests of all the inheritance. 237. Professor Schenk’s response was that: ‘…The heir is defending the interest of the whole, because it's not possible to individualise one's share. The heir defends the whole as a reflex of defending one's own share of the inheritance as the law states. The ideal inheritance share -- there is an ideal share. The heir is the owner of an ideal share of the inheritance. So the heir is defending the ideal share in one's own behalf. As a reflex, the heir defends the interests of the inheritance as a whole.’ 238. Although Professor Schenk was of the view that the heir was bringing a personal claim not a representative one, he accepted in his report that the heir was defending the inheritance as a whole. Further it seems to me that even if it is a personal claim, it cannot be said that the heir is absolutely entitled to the claim as a matter of Brazilian law. As Professor Schenk stated: “The Brazilian succession law mandates that the asset or right granted in court (litigious rights or asset) be subjected to the inventário proceeding. This means the award would need to be shared among the other heirs, through individualisation of each heir’s shares via a distribution or new distribution’. [emphasis added] 239. Professor Schenk was also taken in cross examination to a decision of the Superior Court of Justice (No. 1.736.781- SE) where the issue was whether the lawful heiress of the co- owner of one of the real estate properties in dispute held legal standing to, in her own name, defend the deceased’s interests, before the distribution is conducted. In holding that she had standing to sue, the judge said that: ‘It should be emphasised that the standing to sue of the heir, as already decided by this 3rd Panel, is limited to the defence of the interest of the estate itself, not including the defence of individual interests, as follows: [citing from an earlier judgment]… 2. The standing to sue, as a result of the right of saisine and the indivisibility of the inheritance, may be extended to the co-heirs before the distribution is carried out. However, this exceptional extension of legal standing is limited only to protect the interests of the estate…”.’” ‘The rights are transferred to the heirs at the time of death (with the opening of the succession, according to the saisine principle). Since then, before the distribution, the heirs are the owners of the assets that make up the estate and, have concurrent standing to issue a claim, on their own behalf, in defence of the common patrimony. After distribution, when the indivisibility in respect of the shared property and rights ends, the standing belongs only to the heir to whom the property or right has been attributed.’ [emphasis added] ‘…The heirs are the true owners of the assets and rights that form part of the estate from the moment of death (saisine principle). The ownership of assets and rights and the status of indivisibility of the inheritance until its distribution, with the application of the legal rules of condominium (Art. 1,314 and 1,791, sole paragraph, CC), guarantee the heirs concurrent standing to bring a claim in their own name and in defence of the common heritage.’ [emphasis added] ‘The Article 1.791, the single paragraph of the Brazilian Civil Code that declares the immediate transmission of rights to the heirs, this makes reference to the “condomínio” regime which is also in the Brazilian Civil Code. This allows clearly, especially when seen according to the constitutional principle of access to justice, that the heir can exercise the defence of his own interests compatible with the indivisibility principle. And we have also seen in the cases brought in my report that the defence -- the defence of their share is in their own name and as a consequence it involves the defence of the whole inheritance.’ [emphasis added] ‘The estate is the name given to the inheritance in Brazilian procedural law. The estate is a group of assets, with transitory existence, authorised by procedural law to sue and be sued until the distribution of the inheritance to the heirs. The estate does not have legal personality and, therefore, is not a holder of rights. The assets and rights comprising the estate belong to the heirs in joint ownership. The estate does not prevent the heirs from acting in their own name to defend the assets and rights that compose the inheritance, as we will see in item 6.1.2 of this Report.’ ‘As a consequence of granting the heir authorisation for the judicial defence of the common patrimony (that belongs to all the other heirs in joint ownership until the distribution), the proceeds awarded to the heir in the legal claim will not be considered, automatically, as personal patrimony of that heir. The Brazilian succession law mandates that the asset or right granted in court (litigious rights or asset) be subjected to the inventário proceeding. This means the award would need to be shared among the other heirs, through individualisation of each heir’s shares via a distribution or new distribution, as explained in item 6.1.5 of this Opinion. This legal requirement aims at protecting the interests of the heirs who chose not to file a claim in defence of the common patrimony.’ [emphasis added] ‘… the concurrent standing of the heir in reference to the estate does not mean the heir is necessarily representing the interests of the inheritance in court. The estate represents the indivisible mass in court, the heir acts in his own or her own behalf, defending their own interests. And as I will explain in paragraph 40 of my opinion, because the heir is defending his own share of the inheritance, defending the inheritance as a whole, such benefit might be attained and will be shared amongst other co-heirs. In the inventário proceeding, of course, or in another inventário of redistribution. But these are different elements representing the estate in court and the exercise by the heir of his or her own right, his or her own prerogative, to defend his or her interests.’ ‘…The heir is defending the interest of the whole, because it's not possible to individualise one's share. The heir defends the whole as a reflex of defending one's own share of the inheritance as the law states. The ideal inheritance share -- there is an ideal share. The heir is the owner of an ideal share of the inheritance. So the heir is defending the ideal share in one's own behalf. As a reflex, the heir defends the interests of the inheritance as a whole.’ “The Brazilian succession law mandates that the asset or right granted in court (litigious rights or asset) be subjected to the inventário proceeding. This means the award would need to be shared among the other heirs, through individualisation of each heir’s shares via a distribution or new distribution’. [emphasis added] ‘It should be emphasised that the standing to sue of the heir, as already decided by this 3rd Panel, is limited to the defence of the interest of the estate itself, not including the defence of individual interests, as follows: [citing from an earlier judgment]… 2. The standing to sue, as a result of the right of saisine and the indivisibility of the inheritance, may be extended to the co-heirs before the distribution is carried out. However, this exceptional extension of legal standing is limited only to protect the interests of the estate…”.’”
“As to the demurrer to the second count, it is clear that the plaintiff took the bills on the death of her husband, and, if nothing more appeared, she could only enforce them here by clothing herself with the character of his representative. But the law of domicil attaches to these parties; and there is a distinct averment that the plaintiff was, according to the laws of France, ‘the donee of the universality of the personal and real estates belonging to the succession of the deceased, and thereupon became entitled to all debts, claims, and causes of action which the deceased was entitled to, and the same became and were according to the said laws vested in the plaintiff personally and absolutely in the same manner to all intents and purposes as they were vested in the deceased, and the plaintiff was and is entitled to demand and sue for the same in her own name and in her own right, and the claims and rights of the deceased upon the said bills became vested in the plaintiff, and the plaintiff became entitled to sue the defendant thereupon in her own name and in her own right.’ I think it sufficiently appears upon this record that the plaintiff was entitled to sue upon these bills in her own right; the fact of her being the donee of the universality of the personal and real estates belonging to the succession of her deceased husband giving her by the law of France rights different from those which an executor or an administrator has in this country.”
“The sixteenth plea, to the second count, is that the plaintiff is not executor or administrator of Vanquelin, deceased. For the reasons before given in dealing with the second count, I think that, as the plaintiff is the donee of the universality of the personal and real estates belonging to the succession of the deceased, and became thereby entitled to all debts, &c., to which he was entitled, which by the French law became vested in her personally and absolutely in the same manner as they were vested in him, and she was entitled in France to demand and sue for the same in her own name and right, it is quite immaterial whether or not she was executrix in this country.”
“Now, the construction which the rest of the court put upon that [i.e. an averment in the second count] is, that it appears that the plaintiff has, by some course of conduct and proceeding which is not (and need not be) particularized in the declaration, herself become accordingly to the law of France the owner of these rights, and may enforce them, by reason of her undergoing personal and individual liability in respect of them. I must confess I was strongly impressed with the notion that this was only a disguised averment framed with a view to evade the rule which requires administration in order to entitle a party to sue in respect of the personal rights or property of a deceased person, but in substance amounting to no more than a statement that the plaintiff was the legal personal representative of her deceased husband. But I am disposed to assent to the view taken by my Lord and my Brother Keating, viz. that it does amount to an averment that, according to the law of France, the plaintiff, by reason of the liability which her relation to the deceased’s property entailed upon her, acquired a personal and individual right to enforce this claim, and need not clothe herself with the character of his personal representative.”
“As to the second count, it must not be supposed that there is any difference amongst the members of the court as to the rule which governs the mode of enforcing personal rights or claims to property of deceased persons. That rule is well established, and nothing in this judgment is intended to shake it. But I agree with my Lord that the second count does sufficiently shew upon the face of it that, according to the law of France, the plaintiff was entitled (in France) to this succession, and to sue in respect of it in her own name and in her own right. It seems to me that that is alleged in the count with sufficient distinctness, and that it is admitted by the demurrer.”
“No authority was shown to me to support the proposition that the acquisition of the status as heir without accepting the associated inheritance constituted the interest required by art 38 [of Council Regulation (EC) 44/2001 (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters)] to register a judgment. In my judgment the evidence of Monegasque law is to the effect that obtaining the status of heir and acceptance of inheritance rights are two separate and distinct steps. An heir may not accept his inheritance rights. Regarding such a person as having an interest in property, a judgment, which he has not and may never accept, would not, in my judgment, be consistent with the registration and enforcement scheme of the Regulation. The property of a deceased, a judgment, which an heir does not accept may well devolve on another person. It would be curious if the heir who has declined the inheritance as well as the individual who has acquired legal title to it could register the judgment for enforcement. In my judgment the applicants have not established that the acquisition by them of the status of heirs in itself conferred the interest in the Frangos judgment required for its registration in accordance with art 38.”
“I am not satisfied on the evidence before me … that the applicants acquired an interest in the Frangos judgment for the purposes of art 38 on or before13 January 2009 . They acquired such an interest when they formally accepted their inheritance rights by the acte de notoriété of18 May 2009 . This declared the applicable law and the proportions of ‘toute propriété de la succession mobilière de’ LH of each of the applicants.”
“In my judgment Vanquelin v Bouard (1863) 15 CBNS 341, 143 ER 817 … illustrates the difference between administration and succession in the context of a deceased domiciled and with moveable assets abroad. It also provides an apposite example of how the courts in England will permit a party who has an absolute entitlement to a deceased’s property in accordance with the law of their domicile to enforce in this country that party’s claim in a personal and not a representative capacity.”
“In so far as [Nawab Khan] claims as an heir of the 7th Nizam, he is, in my judgment, in the same position as all others interested in the estate as heirs. They can and should be represented at stage one by Mr Lintott in his role as administrator.”
“The argument was, put briefly, that he would be able to rely on the Muslim personal law applicable to the succession to the 7th Nizam’s estate. The evidence, in its current and limited form, indicates that his personal law would not recognise the concept of administration of an estate and the relevant property would have vested automatically in his heirs. Therefore, the argument runs, there is no estate for an English personal representative to administer, and nothing to prevent the Nawab from making a direct claim to the relevant property.”
“28. That argument, it seems to me, is not sustainable on the basis of authority which is both clear and binding on me. Under the English conflict of laws, the stage of administration of an estate is governed by the law of the place where the assets are situated, which, in the current context, means England. Procedural questions arising in the administration are, likewise, dealt with by the law of the place where the administration is taking place. It is only when one gets on to the question of succession and who is entitled beneficially to share in the estate that one looks to the law of the domicile of the deceased, where one is concerned, as here, with personal property. 29. The disputed fund is situated in this jurisdiction. That remains the case, regardless of how it may vest in accordance with the Muslim personal law of the 7th Nizam. The authorities establish that claims to property in this jurisdiction can only be advanced by and through a properly constituted personal representative. That proposition is most succinctly stated by Warrington LJ in the case of Re Lorillard[1922] 2 Ch 638 at 645–6, where he said: ‘The principle is that the administration of the estate of a deceased person is governed entirely by the lex loci and it is only when the administration is over that the law of his domicile comes in.’” ‘The principle is that the administration of the estate of a deceased person is governed entirely by the lex loci and it is only when the administration is over that the law of his domicile comes in.’”
“48. It is plain that, if the Chetty v Chetty approach is applied in relation to the will of a testator who was domiciled in New South Wales, a court in this jurisdiction will potentially treat an executor as having title to the estate when a New South Wales court would not. As [counsel for the claimant] accepted, on her case the claimant could have issued her claim before obtaining a grant of probate in New South Wales and, hence, at a time when, under New South Wales law, the deceased’s estate was vested, not in her, but in the NSW Trustee in accordance with section 61 of the NSW Act. The claimant would have needed to be in a position to prove her title by the time the case came on for trial, by means of either an English grant of probate or a New South Wales grant and resealing, but, in the eyes of an English court, she would have had standing from the time of the deceased’s death. 49. There is, however, no doubt that English and Welsh law can diverge from that of New South Wales on whether a person appointed as an executor by a New South Wales testator has acquired title to assets in the estate. As Dicey, Morris & Collins on the Conflict of Laws states at rule 156, ‘any property of the deceased which at the time of his or her death is locally situate in England’ ‘vests automatically in his or her personal representative by virtue of an English grant’. Supposing, therefore, that the claimant had obtained a grant of probate in this jurisdiction and not in New South Wales, she would undoubtedly have been considered to have title to property of the deceased in this country despite the estate being vested in the NSW Trustee as a matter of New South Wales law. 50. As mentioned in para 20 above, ‘The administration of a deceased person’s assets is governed wholly by the law of the country from which the personal representative derives his or her authority to collect them’. It seems to me that the question whether the claimant is to be considered to have acquired title to the deceased’s cause of action against the defendants as the executrix appointed under his will is properly characterised as one relating to the administration of a deceased person’s assets. It appears to me, too, that, notwithstanding that the claimant obtained a grant of probate in New South Wales, it is from this jurisdiction that she derives her authority to collect assets here: after all, a foreign grant of representation is not without more recognised as having any force in England and Wales. That being so, the law of England and Wales is, I think, to be applied to the issue of whether the claimant acquired title to the deceased’s estate on his death and New South Wales law on the point is immaterial. On that footing, the Chetty v Chetty approach is in point and the claimant is to be regarded as having acquired title to the cause of action against the defendants on the deceased’s death and so as having had standing to issue the present claim when she did.”
“the common law position is that proceedings commenced by a claimant on behalf of the estate are a nullity unless brought by an administrator who has been granted letters of administration (subject to, for example, a grant of administration ad litem having been made). Relation back does not apply and, therefore, the subsequent grant of administration does not retrospectively validate the proceedings.”
“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.”
“But it is very important to clarify that this legislative reform applies only in the extreme situation where a limitation period has expired.Section 35(7) of the Limitation Act 1980 andCPR rule 17.4 (4) do not give the courts a general power to allow an amendment to alter the capacity in which the claimant is bringing a claim.”
“the proper course is to refrain from strike-out, and to afford the Cs an opportunity to obtain English grants and thereafter apply underCPR 17.4 (4) for permission to amend their capacity so as to identify those grants. Since the applications underCPR 17.4 (4) would naturally fall to be determined at the point when limitation is decided, it is submitted that that would be appropriate cut-off point for the Cs to obtain the requisite grants and lodge their applications. Should it transpire that limitation has not expired, it would be incumbent on the Cs at that stage to start new claims with the benefit of the grants they (will) have obtained.”
“48. Although the Claimants submit that there would be an ‘unjustifiable windfall’ if the Court was to strike out the claims immediately, the Claimants acknowledge that this is only on the basis that they are entitled to the grants, and any application underCPR 17.4 (4), if made, would be granted, and, most significantly, it transpires that limitation has, indeed, expired. As a result, the Claimants do not go further than refer to the ‘as yet unresolved limitation dispute’. 49. As to whether limitation may expire in the future, thereby precluding the bringing of a new claim, it is, in my view, partly, if not largely, of the Claimants’ making, in that it appears that at various stages throughout the proceedings the Claimants took the view that grants would be required, but subsequently decided, possibly for reasons of time and cost, not to seek grants except in limited instances …. 50. Irrespective of whether there was good reason for the Claimants not to pursue the obtaining of grants of representation, in the circumstances of this case, I do not accept that strike out would undermine the policy and intended effect of the legislative scheme: the Defendants’ case is that limitation expired in 2009 and the Claimants have not pleaded a positive case that limitation has expired, relying in this context solely on what they termed an ‘unresolved limitation dispute’. 51. Assuming, in the light of certain (obiter) comments in Jogie, that the Court has a discretion as to whether or not strike out should be ordered in circumstances where a limitation period has arguably expired, in my view, this is a case where the Claimants are seeking to take advantage of a provision which they have not yet invoked. There is no application underCPR 17.4 (4) and no grants have been obtained which would enable them to make such an application. 52. To the extent, therefore, that the Court has a discretion, I decline to exercise that discretion. In my view, no application has been made, and the general law should apply that the claim should be treated as a nullity.”
“68. Since issuing the Strike Out Application, Linklaters [i.e. the defendants’ solicitors] has raised in correspondence (letter of7 January 2022 ) further purported deficiencies relating to deceased claimants in a similar vein to those five Deceased Original Claimants above. 69. PGMBM [i.e. the claimants’ solicitors] takes these matters extremely seriously, and has already despatched a team of London-based staff to Brazil to investigate the purported deficiencies. That team and others in my firm are currently obtaining relevant documents from personal representatives and/or heirs of any deceased individuals, with a view to obtaining English grants of representation as soon as possible for both the Deceased Original Claimants and the Deceased Additional Claimants. 70. My firm has also engaged specialist probate lawyers in England to assist in applying to the Court’s Probate Registry. The outcome of this work is that claims of any Claimants who died before the Claim Form was issued, or whose estates may not have obtained the requisite grants of representation in England, will be regularised as soon as possible. The typical turnaround time for obtaining a grant of representation is around 12 weeks.”
“the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible”
“12. The Claimants propose in their draft order that where a Claimant claims in respect of losses which they suffered personally, their claims shall to that extent not be struck out, and nothing in the Judgment or the order shall be taken to preclude them from pursuing their claims for such losses …. 14. It seems to me that if Claimants are claiming for loss suffered personally (claims which the Claimants refer to as ‘producer losses’), they should not be struck out. 15. Within this category of producer losses (which may amount to several hundred) there appear to be a small number of Claimants who have expressly brought their claim on behalf of an estate. I accept the submission for the Claimants that a claim in respect of that person’s personal losses is not affected by the nullity rule because that would only operate where the claimant had brought the claim on behalf of a deceased person (without a proper grant of representation) but not where the claim is in fact in respect of personal losses. Such a claim is therefore capable of amendment.”
“This action … was brought by one who sued as an administratrix of the estate of her husband. She was not administratrix within the terms of the [Fatal Accidents Acts], for no letters of administration in this country had been granted to her. It was thought that as she had been granted letters of administration in Eire she was a person who was entitled to sue as administratrix in this country. If she had sued merely as the widow of her husband, the point which is now raised could not have been taken. There is no prejudice of any sort towards the defendants. The action was commenced in due time, but it was in the wrong form. The plaintiff sued in the wrong capacity, and time had run before the point was raised by the defendants. She cannot now raise an action in a new capacity.”