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Piggott v Aulton, Deceased, Court of Appeal

5 February 2003
The issues

Limitation – personal representatives – abuse of process.

The facts

The Claimant brought an action against the estate of David Aulton, the deceased Defendant. He claimed damages for injuries caused by a serious road traffic accident on 14th June 1997. No personal representatives were appointed to administer the deceased’s estate. The Claimant’s claim was intimated to the deceased’s Insurers on the 19th July 1999. On the 13th June 2000, proceedings were issued against “the personal representatives of the estate of David Aulton (deceased)”. Insurers pointed out that it was necessary to find out whether personal representatives had been appointed and suggested a discussion with Claimant’s Solicitors. Nothing was done and on the 21st September 2000, the proceedings were sent “by way of service” to the Insurers Solicitors. Nothing was done until the period of service of the Claim Form expired. The Claim Form could not be effectively served until someone had been appointed to represent the estate.

In May 2001 those proceedings were discontinued and new proceedings issued on 4th June 2001. On 7th August 2001, an Order was made by consent for a representative Underwrite to be appointed to represent the estate of the deceased and the proceedings were then served. Insurers took the view that service of the new proceedings was an abuse of process under the principle established in Walkley -v- Precision Forgings Limited, a decision of the House of Lords in 1979. (The House of Lords deciding that once the Claimant had started an action within the primary limitation period, the Claimant would only be allowed to bring himself within Section 33 discretion in respect of a second action to enforce the same cause of action in the most exceptional circumstances).

The decision

1. Walkley was distinguishable. The first set of proceedings had not been properly constituted. There had to be an effective party and the estate of a deceased person was not such a party.

2. Moreover, although on the face of it, the parties to both sets of proceedings were the same, namely the estate of David Aulton (deceased) the Defendants to the sets of proceedings were not. The deceased as such was not a legal person and there were no personal representatives. Mr Murray was not a personal representative and there was only limited identity between him and the deceased for the purposes of the action. Moreover, that identity did not exist at the time of the first action.

Appeal dismissed.

Comments

The Court of Appeal in giving its Judgment, expressed its unhappiness with the state of the law since the Walkley decision and the fine distinctions, which had developed. It noted that those fine distinctions would be no longer necessary if the Law Commission’s report on limitations of action, which the Government had accepted in principle, were implemented.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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