“17.2(1) If a party has amended their statement of case where permission of the court was not required, the court may disallow the amendment.”
“An application under this rule is appropriate if the amendment challenged is one which, if permission to amend it had been necessary, that permission would not have been granted.”
“[19] …whether it was arguable that the relevant limitation period had expired when the amendments and re-amendments were made …” “[38] If a defendant can show that it is reasonably arguable that the new claim introduced by the amendments is statute barred, then leave to amend should not be given. Leave to amend will be given if the claimant can show that the defendant does not have a reasonably arguable limitation defence”
“(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced— (a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and (b) in the case of any other new claim, on the same date as the original action.”
“(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either— (a) the addition or substitution of a new cause of action; or (b) the addition or substitution of a new party; and “third party proceedings” means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.”
“(3) 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. For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.” [Emphasis added]
“(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose. (5) The conditions referred to in subsection (4) above are the following— (a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and (b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.”
“[63] The starting point for consideration of this issue is the Court of Appeal’s decision in Welsh Development Agency v Redpath Dorman Long Ltd[1994] 1 WLR 1409 . In that case the Welsh Development Agency (“WDA”) engaged engineers to design the sub-structure of twelve factory units. Subsidence later occurred in the floors of two units. WDA commenced proceedings in negligence against the engineers for negligent design of the floor units. Two years after commencing proceedings WDA applied for leave to amend their statement of claim (i) to add a claim in respect of floor settlement in the other ten factory units and (ii) to add separate claims for negligent mis-statement. The official referee allowed the amendments in respect of the other ten factory units, holding that this new claim arose out of similar facts. He refused leave to add the new claims for negligent mis-statement. The official referee held that, having regard to section 14A of the 1980 Act, it was unclear whether the claims for negligent mis-statement were barred by limitation. [64]. The Court of Appeal dismissed appeals by both parties and upheld the official referee’s judgment. In particular, the Court of Appeal endorsed his approach to new claims which do not arise out of similar facts. The Court of Appeal held that where it was arguable that a new claim was statute barred, leave to amend should not be given. The plaintiff should not gain the benefit of relation back under section 35 (1) of the 1980 Act. On the other hand if the plaintiff could show that the defendant did not have a reasonably arguable limitation defence which would be prejudiced by the operation of section 35 (1) of the 1980 Act, then the court may give leave to amend. See the judgment of the court at 1425 G-H. [65]. WDA was a case which proceeded under the old Rules of the Supreme Court, which were swept away in April 1999. Nevertheless the provisions of the former RSC Order 20 rule 5 are, for present purposes, substantially the same asCPR rule 17.4 : see Part 1 above. Both the old rules and the new rules are intended to implement section 35 of the 1980 Act. The guidance given by the Court of Appeal in WDA remains effective, as is correctly stated in paragraph 17.4.2 of the commentary in Civil Procedure (the White Book).”
“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 WDA 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.”
“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.”
“24. The first part of the appeal arises out of CTC’s unsuccessful application to disallow the amendments of 17/18 March 2020 . Ms Parkin submits that it is reasonably arguable that the relevant limitation period had expired by the time the amendments were made. She contends that the judge applied the wrong test in law and that, if he had applied the right test, he would have been bound to hold that the 15 year limitation period identified ins.14B of the Limitation Act 1980 had, at least arguably, expired. 25. Mr Hargreaves’ response was a refined version of the argument which found favour with the judge. He said that, on a proper analysis of the applicable law, what he described as the “constrained case” proposed by BDW (in other words, making no allegations about drawings issued before18 March 2005 ) provided a complete answer to Ms Parkin’s application.”
“I consider that the right approach is that explained in WDA and subsequently reiterated by Jackson LJ in Chandra. If a defendant can show that it is reasonably arguable that the new claim introduced by the amendments is statute barred, then leave to amend should not be given. Leave to amend will be given if the claimant can show that the defendant does not have a reasonably arguable limitation defence. In my view, precisely the same test applies in a situation, such as the present one, where s.14B is invoked.”
“For these reasons, therefore, it seems to me that it is reasonably arguable that the claims against CTC in relation to Feltham were new claims made after the limitation period identified in s.14B had expired. Applying the test in WDA and Chandra, I consider that the judge erred in concluding otherwise, and permission to make the amendments of 17/18 March 2020 should have been refused. If my Lord and my Lady agree with that conclusion, the result of the first part of the appeal is that, insofar as they affect CTC, the amendments of 17 and18 March 2020 must be disallowed.”
“The first issue for the judge to decide, which was common to both applications, was whether it was arguable that the relevant limitation period had expired when the amendments and re-amendments were made on 17/18 March 2020 …”
“…If I am wrong in my conclusion that a party cannot add itself underCPR r 17.1 at all, then Mr Rabinowitz can challenge the additions as being made outside an arguable limitation period (Chandra, above). That point is in my view clearly correct…”
“25…neither Chandra nor Blue Tropic (nor any other authority of which I am aware) addresses the specific questions which may arise in the context of a representative action constituted as the present one. The Chandra approach is ideally suited to a claim by an individual claimant against an individual defendant where refusing the application and leaving the claimant to protect himself by issuing separate proceedings is straightforward. Arguably different considerations apply in a case such as the present which is the vehicle for 27,000 individual claims each of which is dependent upon proof of actionable damage specific to that claim. At least the theoretical possibility exists, therefore, of time running from different times for different claims and claimants…”
“17.4.1 The term “limitation period” is defined in the Glossary (see Vol.1, Section E).Section 35 of the Limitation Act 1980 limits the court’s power to allow amendmentsafter a relevant limitation period has expired unless the application is to amend in one of the following ways: (1) raising, by amendment, an original set off or counterclaim; (2) raising a new claim arising out of the same facts, or substantially the same facts as an existing claim; (3) correcting the name of a party; (4) altering the capacity in which a party is joined. …”
“Where it is reasonably arguable that the relevant limitation period has expired before an amendment is made, the burden is on the applicant to show that the amendment falls within the provisions of rr.17.4 or 19.6. A new claim under s.35(3) is not made until the statement of case is actually amended, which, by definition, cannot be earlier than the date upon which permission to make specific amendments is given. Unless the case falls within one of the exceptions, such permission cannot be given after the relevant limitation period has expired. It is immaterial that the limitation period had not expired on the date the application to amend was made (Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 W.L.R. 1409; [1994] 4 All E.R. 10, CA) or on the date upon which the court adjourned a hearing on the basis that the specific amendments sought would be revised and brought back to court later for approval (Bajwa v Furini[2004] EWCA Civ 412 ). Where there is a dispute as to whether or not a new claim sought to be raised by amendment is statute-barred, the claimant must prove (i) that the defendant’s limitation defence is not reasonably arguable, or (ii) that, in any case, the amendment falls within the provisions of rr.17.4 or 19.6. If they cannot establish either (i) or (ii) permission to amend should be refused leaving the claimant to bring fresh proceedings on the new claim (Chandra v Brooke North[2013] EWCA Civ 1559 ; [2014] T.C.L.R. 1, Ballinger v Mercer Ltd[2014] EWCA Civ 996 ; [2014] 1 W.L.R. 3597). In Cameron Taylor Consulting Ltd v BDW Trading Ltd[2022] EWCA Civ 31 , the Court of Appeal considered both rr.17.4 and 19.6 (adding or substituting parties post limitation) and iterated that common to both was a need to decide whether it was arguable that limitation had expired ([19]). “If a defendant can show that it is reasonably arguable that the new claim introduced by the amendments is statute barred, then leave to amend should not be given. Leave to amend will be given if the claimant can show that the defendant does not have a reasonably arguable limitation defence” per [38].”
“(3) 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.”
“…we reserve our clients’ rights to bring an application for strike out in relation to the Claimants that were added to claim CL-2019-000603 by way of purported amendment to the claim form on22 November 2019 and23 January 2020 , including on the basis of the judgment in Various Claimants v G4S[2021] EWHC 524 (Ch) .”
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.”
“[24]…The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.”
“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.”
“To ask the court to strike out the claim on the basis that it has no real prospect of success or on the basis that the claim form discloses no reasonable ground for bringing the claim is to ask the court to adjudicate the substance of the claim. There is more than a risk that this will be seen as accepting and submitting to the merits jurisdiction of the court. A cautious view, but a sensible one, would be that such an application should not be made until the procedure and theCPR Part 11 has come to an end…”
“…I do not accept the argument that the Fifth Defendant is making the wrong application; the authorities, including the excerpts from Briggs and Dicey cited by Mr Abraham in his second witness statement, make clear the very great degree of caution which a party who is challenging jurisdiction must exercise. The point appears to be open; neither party referred me to authority which dealt with this point in terms. 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.”
“The issue of an application to strike out the claim at the same time as an application to challenge the jurisdiction cannot conceivably be described as “only necessary or only useful” if the objection to the jurisdiction made in the same application and is clearly not being abandoned. Putting it another way, where both applications are being made, the fifth defendant's conduct is at best equivocal. Whilst he could have made it absolutely clear by expressly stating in the application notice that the application to strike out was without prejudice to his challenge to the jurisdiction, the fact that he did not do so does not make his conduct wholly unequivocal. Andrew Baker J was correct to reject the similar argument which Mr Samek QC ran in Tsarova . Furthermore, the suggestion that somehow the fifth defendant had submitted to the jurisdiction by making the alternative application to strike out is, as I pointed out during the course of argument, inimical to proper case management.”
“35…The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. Where there is a good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted. 36 But it is always necessary to have regard to all the circumstances of the case…”
“5 The first principle is that a claim cannot be brought in the name of a deceased person. There is authority for this, which dates from (at least) the early 19th century: see, for example, Watson v King (1815) 4 Camp 272; “How can a valid act be done in the name of a dead man”; Clay v Oxford (1866) LR 2 Exch 54, 55 and Tetlow v Orega Ltd[1920] 2 Ch 24 . A more recent statement is that of Morritt LJ (with whom Simon Brown and Waite LJJ agreed) in In re NP Engineering and Security Products Ltd[1998] 1 BCLC 208 where the Court of Appeal said, at p 214: “It is well established that proceedings are only a nullity if the plaintiff is dead or non-existent in the sense of being a body corporate that has been dissolved at the time when the proceedings are commenced”.”
“17 The claimants’ alternative submission was that the court has a discretion, pursuant to its general case management powers, to cure the defect. I was referred to the decision of Peter Smith J in Meerza v Al Baho[2015] EWHC 3154 (Ch) … The Meerza case did not deal with the position where the claim was brought in the name of the deceased claimant. It is not therefore authority in respect of the first principle referred to in para 5 above. The living claimant in the Meerza case sued without having obtained the appropriate letters of administration. That is not this case. … 19 In my judgment, there is no such discretion where the claim is a nullity, as the Millburn-Snell case and the more historic decisions make clear it is. If the Meerza case is not distinguishable I find myself constrained to depart from the reasoning and judgment of Peter Smith J. In their skeleton argument, the claimants said that the court can assist to ratify a claim that would otherwise be a nullity and relied upon the case of Adams v Ford[2012] 1 WLR 3211 . There a solicitor took a pragmatic approach to include people in the claim form from whom he did not have authority. An application to strike out was refused. However, this decision of the Court of Appeal reinforces my judgment but there is no such power. Contrary to what the claimants asserted, the Court of Appeal first approached the question of whether what the solicitor had done there was a nullity and expressly decided that it was not: see paras 27—32. It is implicit in the judgment of Toulson LJ that had the proceedings been a nullity then they would not have been salvageable, save as to those claimants who had authorised the issue of proceedings: see para 36.”
“55. Millburn-Snell has subsequently been applied, albeit with very little discussion, by the Court of Appeal in Hussain v Bank of England Plc[2012] EWCA Civ 264 , para 39; and at first instance in, for example, Kimathi v Foreign Commonwealth Office (No 2)[2016] EWHC 3005 (QB) ;[2017] 1 WLR 1081 , paras 6, 17-19 . In the latter case, Stewart J rejected the view, that had been accepted by Peter Smith J in Meerza v Al Baho[2015] EWHC 3154 (Ch) , para 46 , that the courts had a discretion underCPR Part 3 (dealing with the courts' case management powers) to apply the overriding objective to overcome the nullity of a claim, by allowing an amendment as to the capacity of a claimant (who had only subsequently been granted letters of administration) where it was just to do so (e.g. where it would cause no prejudice that could not be dealt with by a costs order). As Stewart J said at para 19: “In my judgment, there is no such discretion where the claim is a nullity, as the Millburn-Snell case and the more historic decisions make clear it is. If the Meerza case is not distinguishable I find myself constrained to depart from the reasoning and judgment of Peter Smith J.”
“50. Rimer LJ [in Millburn] said the following at para 16: “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.”
“What [Ingall] 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 rule 19.8(1) may empower, it follows that the claim the claimants issued was equally an incurable nullity. … I … consider that rule 19.8(1) has no application to the present case … rule 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 rule 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 rule 19.8(1) as providing an optional alternative to such ordinary course.” 51. Lord Neuberger MR added the following in his short concurring judgment at para 41: “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[1944] KB 160 , it is a well-established principle, and, once one concludes that it has not been abrogated byCPR rule 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.” 52. One can elaborate further on what Lord Neuberger said by recognising that, contrary to what is sometimes thought, the common law rule can be defended at least as a general rule. This is because requiring the appropriate person (i.e. the administrator) to commence proceedings ensures orderly proceedings, avoids duplication, and means that the estate is represented by the most appropriate person. 53. As regards a fresh action being validly commenced by the appointed administrator, the Court of Appeal recognised that this is probably what would now happen. If so, the court recognised that, to save needless expense, appropriate directions should be given for the claim to move rapidly to trial without requiring a timely repeat of the steps already taken.”
“203 The position under rule 19.5(3)(a) seems to me to be different. I think it correct to regard this as a substitution even though the existing claimant does not exist. The non-existence of the originally pleaded claimant is not a bar to the notion of substitution (see the Sardinia Sulcis and Rosgosstrakh Ltd v Yapi Kredi Finansal Kiralama AO[2017] EWHC 3377 (Comm) ), a conclusion to which I would have come even in the absence of authority. The more difficult question is whether the error made was one as to name (appropriately expanded, as the authorities require) or a mistake as to identity. Mr Rabinowitz submitted that where a claimant thinks about which claimant to join, and makes a wrong decision, that is not an error of nomenclature but is an error of identity. Again, I would agree with him on a literal meaning of the words, and I suspect a philosopher would too, but the law has adopted an expanded meaning of the concept of an error as to naming—see the discussion of the authorities above. According to the claim form, the claim was being brought by a fund which claimed a shareholding in G4S. In my view that is a description which is sufficiently specific to this case (per Stocker LJ in Sardinia Sulcis).”
“…there are subtle differences between that line of authority [Jogie and Ingall] where the claim essentially is always maintained by the same person, but the issue is as to whether that person has the relevant capacity. And the typical fact situation where Jogie has been applied, and Ingall before it, are situations where the relevant capacity is not held, but is subsequently acquired when it's too late. But it doesn't say anything about the addition of a new claim in the name of a new claimant.”
“86 The application was heard by Roger ter Haar QC sitting as a Deputy High Court Judge, who permitted the substitution sought. He did so primarily on the basis ofCPR rule 19.5 (3)(b) (which is the equivalent of Rule 38(7)(b) of the CAT Rules) … 87. … the Deputy Judge rejected the contractors’ argument thatCPR 19.5 (3)(b) was inapplicable because Limited had ceased to exist at the time that the proceedings were commenced and hence the proceedings were a nullity. The Deputy Judge did not, however, explain his conclusion other than to state that: “A situation where the proceedings would otherwise be a nullity is well within the situation in respect of whichCPR Rule 19.5 (3)(b) is intended to provide a remedy”.”
“Accordingly, in our judgment, the decision in AIG cannot be supported on the basis of the authorities to which the Deputy Judge referred. In our view, it was wrongly decided and should not be followed. The decision in AIG therefore casts no doubt upon the correctness of the Judgment that Rule 38 of the CAT rules does not permit the inclusion in the collective proceedings of claims by the personal representatives of persons who died before the Claim Form was issued on20th February 2020 .”
“Choses in action generally are situate in the country where they are properly recoverable or can be enforced”) and any cause of action vested in a deceased person devolves upon his properly authorised personal representative:Law Reform (Miscellaneous Provisions) Act 1932 section 1(1) : “…on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.” c. Bringing claims for the estate is the administration of the estate: Cheshire & North Private International Law (15th ed) at p1333: “Administration therefore is usually followed by succession. The personal representative usually exercises his power to collect assets and to clear debts, pursuant to the law of administration, before distributing assets to beneficiaries under the law of succession.”
“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 Ms Meager 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”
“27. I also need to deal briefly with an argument advanced by Mr Brown this morning, that the Nawab can claim directly against the fund in his position as an heir, assuming it to be established on the facts that he is an heir. 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.” 30. I was also referred to a first instance authority in the British Virgin Islands to similar effect, and to the decision of the House of Lords in New York Breweries Co. Ltd v Attorney General[1899] AC 62 . 31. On the basis of those authorities, and as a matter of fundamental principle, it seems to me that the argument advanced by Mr Brown is misconceived and does not provide an arguable basis for his client to claim directly in his alleged capacity as an heir.”
“as a matter of English law in this court, you have to ask if the heirs have succeeded to the assets in the sense understood in this jurisdiction. And that's what the High Commissioner of Pakistan demonstrates.”
“The modern legal systems which have had their origin in English law differ fundamentally from the civil law jurisdictions with regard to the procedure by which property is administered after the death of its owner. In England the only person entitled to deal with the property is the person to whom a grant has been made by the court… In the civil law countries, in the rare case where personal representatives are appointed, their duties and functions are generally of a supervisory nature widely different from those of their English counterparts. The general civil law rule is that the entire property of a deceased person passes directly to his heirs, testate or intestate, or to his universal legatee, subject of course, to their acceptance... The striking difference between English and civil law practice is that in the latter case the property passes on death directly to the successor, but in England it cannot be dealt with by anyone without a public grant. The automatic transfer recognized by civil law systems cannot operate on property of the deceased situated in England. Succession to movables is governed by the law of the deceased domicile, but no matter what that domicile may be, nobody can rightfully and effectually obtain possession of movable property situated in England unless he gets an English grant of probate or of administration. An English grant is always required in order to provide authority to administer English asset.”
“Administration therefore is usually followed by succession. The personal representative usually exercises his power to collect assets and to clear debts, pursuant to the law of administration, before distributing assets to beneficiaries under the law of succession.”
“Administration concerns the procedure to deal with the deceased’s estates including grants of representation, the representative’s power to collect the deceased assets and pay debts, order of priority for the payment of creditors, and the power of the representative to handle the deceased assets such as postponing the sale. Succession concerns the substantive rights such as the beneficial entitlement to the deceased's estate.”
“Disputes on classification may also arise in cases where an heir, to whom the deceased’s estates may pass directly under the foreign law, applies to enforce foreign judgments concerning the deceased's estate in England or bring actions in England to recover the deceased assets. It has been argued that these actions do not concern succession but administration of estates and the foreign heir has no interest to bring any action in relation to the deceased’s property in England before obtaining a grant from the English courts. The courts, though accepted the classification as a matter of administration, recognised the heir's interest to enforce a personal rights (sic) acquired pursuant to the choice of law of succession.”
“In my judgment the case of Vanquelin v Bouard 15 CB (NS) 841 (19.11.1863), relied upon by Mr Millett, 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 representative capacity.”
“A widow in France became donee of the universality of the succession of her deceased husband. By French law she was, as such donee personally liable for her husband's debts and personally entitled to his property. She paid to an indorsee the amount of a bill of exchange that her husband had drawn and later brought an action in England to recover this amount from the acceptor. It was held that there were two grounds on which the widow must succeed. First the right that she sought to enforce was one that she had acquired personally since it arose from a payment made by her after her husband's death. Secondly her position as donee gave her, according to French law, a personal right to recover the sum from the acceptor.”
“the ground of the demurrer to these two counts is that the plaintiff is in effect suing in a representative character which he cannot do without having obtained letters of administration in this country. The allegation in both counts is that, being donee of the universality of the personal and real estate belonging to the succession of her deceased husband, the plaintiff became according to the laws of France entitled to all the property and rights of the deceased absolutely in her own right and not in any representative capacity. I am of opinion that that averment if it were necessary to stand upon it must be taken to be true and so it appears upon the record that the law of France in which country all the parties were domiciled would give her a locus standi to sue there in her personal capacity... 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 domicile attaches to these parties and there is a distinct averment thatthe 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.”
“Although a foreign administrator is not permitted to sue in England as the representative of the deceased, he may enforce by action a right that is personal to him and which he is entitled to assert in his own individual capacity, even though it is connected with the estate that he is administering.”
“1.2 The heirs have, concurrent standing to sue, with the estate (represented by the provisional administrator or the inventariante), to bring claims in their own name in defence of the interests of the entire estate, provided that there is no distribution.”
“The law authorises the inventariante to represent the estate in court, as provided for in Articles 75 and 618 of the Brazilian Civil Procedure Code. There is no article in the law that grants concurrent standing to the heirs. There is jurisprudence that authorises the heirs to propose measures to defend the estate’s assets in urgent and specific situations, but these decisions are not binding under the Brazilian legal system.”
“The following shall be represented in court, as plaintiffs and defendants: I - the Federal Government, by the Office of the General Counsel to the Federal Government, either directly or through connected authorities; II - the State and the Federal District, by their State Prosecutors; III - the Municipal District, by its mayor or municipal aftorney; IV - government agencies and foundations governed by public law, by whomever the law of federal entity appoints V - the bankruptcy estate, by the bankruptcy trustee; VI - the unclaimed or heirless estate, by its curator; VII - the inheritance, by the administrator/inventariante; …”
“The inventariante is responsible for: I - representing the estate as plaintiff or defendant, in or out of court, observing, in relation to the ad litem, the provisions of Article 75, Paragraph 1; II - managing the estate, safeguarding the assets with the same level of diligence used as if such assets were their own; …”
“The administration of the inheritance, which is the responsibility of the inventariante, doesn't confused with the right of the heirs to bring a claim as well… I agree that this is the responsibility of the inventariante and before assuming this role, the provisional administrator responsible for that, but they are separate things. The list of duties of the inventariante is definitely much wider. What I say in my report is this duty of the inventariante, which is wider, includes one of the items if the representation in court it does not exclude the possibility of the heir to also bring a claim in their own name, their share in the inheritance, their own share in the inheritance.”
“The administration of the inheritance will be exercised by the administrator [inventariante] of the estate from the execution of the commitment up to the ratification of the sharing of the inheritance.”
“…even on Professor Schenk's case that the heirs have concurrent standing… any claim which the heir brings before the sharing takes place in order to defend the assets of the entire inheritance. The assets representing the estate of the deceased person are being defended. The heir is not bringing the claim in the same way as if he had personally suffered loss and damage… If an heir successfully pursues a claim before the sharing takes place, before the assets distributed, any sums which the heir receives will not be his own personal assets…The heir is required to treat those sums as forming part of the estate which are subject to the sharing.”
“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.”
“…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.”
“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.”
“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.”
“…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.”
“... 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 representative capacity.”
“Q. All right. So in those cases, in those cases, where an heir can legitimately bring a claim in its own name in the exercise of its rights of co-ownership, presumably you accept that in those cases the heir must necessarily be entitled to authorise lawyers to act on its behalf? A. Yes, in this case, yes.”
“The right to the open succession, as well as the portion available to the co- heir, can be object of assignment by public deed. Paragraph 1… Paragraph 2 - The assignment, by the joint heir, of their hereditary right over any property of the estate considered singularly is ineffective. Paragraph 3 - Pending indivisibility, the disposition, by any heir, of a component asset of the inheritance, without prior authorisation from the succession judge does not produce any legal effects.”
“In this case here, the inventariante represents the estate and the estate administers the interest of the heirs. When the inventariante, who is a representative, wants to alienate an asset it needs law -- need judicial authorisation in his capacity as a representative. Now I want to draw your attention. Now we're looking at a very different situation here. The heir who received the asset at the point of the death of his father, for example, the heir immediately receives the inheritance rights. And if he wishes -- it's a personal right. It's a right that has been received with the inheritance. If the heirs wants to transfer, assign this right it to a third party, he can do so, because he is disposing of an interest which is his own. This is the difference.”
“Article 1.793 at the head of the article it demands a public deed for the assignment. A public deed or the absence of a public deed demands the application of Article 166. The absence of a public deed causes this section to be null… you can notice at the beginning of Article 166 that we read “it is null”