Analysis
The second defendant company was the registered proprietor of property in England. It was dissolved in 2003, and the property was subsequently sold by the Crown as bona vacantia in July 2012. In October 2012 the deceased, who had been the sole shareholder and director of the second defendant, died. The first claimant claimed to be his widow and a beneficiary upon intestacy. The second claimant was the deceased’s son and beneficiary of a will. The first defendant claimed to be the son of the deceased, but paternity was disputed.
In 2013 the first defendant applied to restore the company to the register and purported to file forms at Companies House recording his appointment as a director and the transfer of the deceased’s shareholding to him on 1 March 2013. In 2014 the first defendant obtained letters of administration of the deceased’s estate in Nigeria, which were later resealed in England. The company was restored to the register and the Treasury Solicitor paid the proceeds of sale to the first defendant.
In July 2014 the first defendant was injuncted in Nigerian proceedings from administering the deceased’s estate, and the English grant was cancelled in February 2015. On 2 April 2015 the claimants issued the current proceedings and obtained a freezing injunction against the defendants in respect of the sale proceeds of the property.
The defendants applied to strike out the claim on the basis that it was brought, and could only be brought, by the claimants as personal representatives, but without a grant to confer title the proceedings were an ‘incurable nullity’ after Ingall v Moran [1944] KB 160. The claimants maintained that the claim was brought only in their capacity as beneficiaries of the estate, but in the alternative applied for an order appointing themselves personal representatives of the deceased under s116 Senior Courts Act 1981, alternatively for an order joining the estate to the proceedings.
The issues to be determined were:
- A. Was the claim brought by the claimants in their capacity as beneficiaries or on behalf of the estate?
- B. If brought on behalf of the estate, should the claim be struck out for lack of standing by reason of the absence of a grant?
- C. Alternatively, should an order under s116 Senior Courts Act 1981 be made, or an order joining the estate as a party?
Held
- 1) Properly characterised, the claim was brought by the claimants in their personal capacities as beneficiaries. Despite the uncertainty caused by references to the claimants as personal representatives on the application for the injunction, the claimants have always made clear that their claim was as beneficiaries against the first defendant as executor de son tort. Such a claim could be brought by each despite their different interests in the estate, and it was not necessary to use that term expressly in the pleadings – Coote v Whittington (1873) LR 16 Eq 534; Re Lovett (1876) LR 3 Ch D 198 followed. [para 23-25]
- 2) Obiter, there are two competing lines of authority as to whether the court has a power to cure the issuing of proceedings before a grant of representation has been made. The Court of Appeal in Ingall v Moran [1944] KB 160 held that such proceedings were an ‘incurable nullity’. However, Hendry v Chartsearch Ltd [1998] CLC 1382, CA and more recently Maridrive & Oil Services (SAE) v CNA Insurance Company (Europe) Ltd [2002] EWCA Civ 369 suggest there is a discretion given by Part 3, CPR to permit amendments to add causes of action accruing after issue. The ratio in Ingall is to be preferred; CPR 3 does not deal with amendments to claims or joinder of parties, nor does the overriding objective allow the court to ignore the specific rules which do. Moreover, Hendry was decided under the RSC 1965, not the CPR, so may be an unsafe basis for such a discretion – Maridrive & Oil Services (supra) doubted. In any event, the claimant in this case had never obtained a grant of representation even at the hearing of the application, so no discretion arose – Meerza v Al Baho [2015] EWHC 3154 (Ch) distinguished, and doubted. [para 39-49]
- 3) Obiter, that it would not have been appropriate to order a grant of letters of administration to the claimants ad colligenda bona or ad litem. Neither could be described as impartial or independent – Ghafoor v Cliff [2001] 1 WLR 3022 applied. [para 37-38]
Both applications dismissed.
JUDGMENT MASTER MATTHEWS Introduction [1] This is my judgment on two applications before the court. One is made by the defendants by notice dated 19 February 2016 (but sealed by the court only on 25 February 2016) to strike out the claim or alternatively for summary judgment. It is supported by the witness statement of …Continue reading "Haastrup & anr v Haastrup & anr [2018] WTLR 445"