Kimathi & Ors v The Foreign & Commonwealth Office

1. On 28 October 2016 the Defendant issued an application in the following terms: “…that the claim of Test Claimant 11 (Ndimitu Wagachima) be struck out, pursuant to CPR 3.4(2)(a) and/or (b), as a nullity or otherwise that it be summarily determined for that reason.” The parties have used the abbreviation TC11 and the Court will adopt their abbreviation in this judgment. No disrespect is intended to the deceased.

2. The application contains a short witness statement from Mr Andrew Robertson, a senior lawyer in the Government Legal Department. He says: i. That the Defendant applies to strike out the claim purportedly brought by TC11 and for removal of the name of that Claimant from the register. ii. TC11’s name was added to the Group Register on 14 March 2014. However he had died over 6 months previously on 23 August 2013. iii Defendant’s primary defence to the TC11’s claim is that it is a nullity because it was brought in the name of a person who was already dead. Mr Robertson refers to paragraphs 2 and 3 of the Re-amended Individual Defence, which states: “2…The claim is not properly constituted and/or is a nullity because it was brought in the name of Mr Ndimitu Wagachima (below referred to as “the deceased claimant”) after he had died, and/or because the requirements of section 2(1) of the Colonial Probates Act 1892 have not been met.

3. The Defendant notes that at all material times, the claim has been entered on the Group Register in the name of the deceased claimant personally (and not that of his Estate or the Administrators thereof) and no permission to amend, to add or substitute the deceased Claimant’s Estate has been sought from, or granted by, the Court.”

3. To complete the relevant pleadings, in the Individual Particulars of Claim the following appears: “1. This claim is brought pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased Claimant, Ndimitu Wagachima.

2. The Administrators of the Estate, and by whom the claim is brought, are Esther Nyambura Maina, Joseph Waigwa Wagachima and Duncan Maina Karawathe. A Limited Grant of Letters of Administration ad litem was issued in favour of the Administrators at the High Court of Kenya through the Registry at Nairobi on 28 January 2015.

3. The deceased Claimant died on 23 August 2013. He died of Pneumonia. He is survived by close family members who are beneficiaries of his Estate.” In the Individual Reply, paragraph 4, it is stated: “As to paragraphs 2, 3 and 4 [of the Re-amended Individual Defence] the basis of the claim is adequately pleaded and the Defendant knows the case it has to meet. The claim was brought on behalf of the deceased's estate and the Claimants are and remain anxious to avoid unnecessary and disproportionate expense in meeting technical requirements until such time as it is necessary to do so, save that matters are in hand and are being dealt with as expeditiously as is reasonable in the circumstances. If there is any particular reason why the Defendants consider it imperative to take such action at this point in time, would they please specify.”

4. The Defendant contends: a) TC11 died on 23 August 2013, nearly seven months before his name was entered onto the Group Register on 14 March 2014, and the claim purportedly brought by him is a nullity. b) The pleaded basis upon which TC11’s claim is alleged to be valid (i.e. that it was an estate claim) is incorrect both in fact and in law – the claim was brought in the name of TC11 (not that of his estate); but in any event, no estate claim could have been brought in England until the Kenyan High Court’s letters of administration were re-sealed by the Family Division of the High Court on 22 March 2016. The Established Law

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 19 th century . A more recent statement is that of Morritt LJ (with whom Simon Brown and Waite LJJ agreed) in 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 , particularly at page 55; Tetlow v Orela Ltd [1920] 2 Ch. 24 NP Engineering and Security Products Limited, Official Receiver v Pafundo [1998] 1 BCLC 208 where the Court of Appeal said (page 204a) “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.”

6. The second principle is that an administrator cannot sue under s.1 of the Law Reform (Miscellaneous Provisions) Act 1934 unless a grant of letters of administration has been obtained. In Ingall v Moran Scott LJ said (page 164): [1944] KB 160 “The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant's tort. That chose in action was his. To it the common law maxim " Actio personalis moritur cum persona " would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then - and not before - it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son's surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 - an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff's failure to produce them the action would, on the defendant's application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action - just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim… The old writ was, in truth, incurably a nullity. It was born dead and could not be revived.” (See also Luxmoore LJ at page 167 – 168 and Goddard LJ at page 170). This principle has been more recently reiterated in Millburn-Snell v Evans . [2011] EWCA Civ 577 ; [2012] 1 WLR 41

7. Thirdly, in respect of a Grant of Administration in another jurisdiction, proceedings cannot be validly instituted prior to the re-sealing of the Grant in England. Burns v Campbell [1952] 1 KB 15 at pages 17 & 18. The Dispute

8. In short, the Defendant’s submission is: i. Because TC11’s name was added to the Group Register on 14 March 2014 and he had died on 23 August 2013 the claim was brought when he was already dead and was, on the basis of the authorities cited, a nullity. ii. The claim was brought in TC11’s name and not that of his estate. iii. Even if the claim had been brought on behalf of TC11’s estate (paragraph 4 of the Individual Reply), when his name was added to the Group Register on 14 March 2014 no valid estate claim could have been brought, as the Grant of Administration in Kenya was made on 28 January 2015 and was re-sealed in England on 22 March 2016.

9. The Claimants in response refer to a detailed chronology which I attach as an Appendix to this judgment.

10. The central point is the Claimants’ submission that the date of issue was not TC11’s entry onto the Group Register on 14 March 2014 but rather the issue of the claim form on 28 March 2013 i.e. prior to TC11’s death. Therefore, it is argued, there is no nullity. By reference to the chronology it is submitted that the Claimants on the Group Register (aside from the initial 20 Claimants of whom TC11 was not one) have not separately issued their claims. This was with the agreement of the Defendant and said to be with express authority of the Court, namely the then Senior Master, Master Whitaker. The first case management hearing was on 1 July 2013 . The Claimants’ application for a Group Litigation Order (GLO) was made on 5 July 2013 Chronology item 4 . At that stage TC11’s name was on the Schedule served with the application for a GLO. It was in the month following, namely August 2013, that TC11 died. On 22 October 2013 Chronology item 5 a further CMC took place before Master Whitaker. As can be seen from the extract in the chronology, the question of Claimants being added to the Register was canvassed. Master Whitaker said that there would be one claim, i.e. claim number HQ13X02162, and that number would apply to everybody who went on the Register. He further said, “The date of entry on the Chronology item 8 Register is there anyway, separately, is it not? So that is fine. I mean, you do not need a claim number, because they are all proceeding under the same…”

11. The GLO was then made on 4 November 2013 and TC11’s name was added to the Group Register on 14 March 2014 Chronology item 9 . Chronology item 10

12. The claim form was issued on 28 March 2013 and served on the Defendant on 8 May 2013 Chronology item 2 . The Claimants’ submission is: Chronology item 3 i. The Court and the Defendant accepted that all claims added to the Group Register would be treated as having been issued under claim number HQ13X02162 on 28 March 2013. ii. This was an expeditious, effective and proportionate method of litigating the action. Aside from the initial 20 Claimants, none of the Claimants on the Group Register has separately issued a claim, pursuant to the authority of the Master and the acceptance of this by the Defendant. iii. Entry onto the Group Register is not therefore the relevant date. iv. The Court should take account of the well-known policy reasons behind GLOs , especially those parts which emphasise that GLOs are to provide an expeditious, effective and proportionate method of resolving cases. See paragraph 19.10.0 of the 2016 White Book Volume I

13. The difficulty with the Claimants’ submission is that the Group Litigation Order which was made by the Senior Master contains the following paragraphs: “4. The initial Claimants are those 20 (twenty) individuals named as Claimants in the claim form issued and served on 8 May 2013 in respect of claim number 13X02162, being represented by Tandem Law/AVH Legal and whose names are set out in Schedule 1 to this Order.

5. Further individuals whose claims fall within the group may hereafter apply to the lead solicitors to be entered in the Group Register referred to below and joined as Claimants under the terms of this order. …

16. Any Claimant who joins the Group Litigation will be deemed to have become party to the proceedings on the date of entry on the Group Register and will be bound by the Courts determination of such (if any) issues as may have been determined as of that date.”

14. In my judgment, these paragraphs make it clear that a Claimant became party to the proceedings on the date of entry onto the Register and not before. This is in accordance with the requirements of the law. Otherwise a solicitor would be able to add a dead person to the Group Register up to 30 May 2014 (when the Register closed) even if that individual had died many months earlier. It would have been impermissible for the Court to have authorised a claim to be brought in the name of a deceased person after the date of death. In support of this is the following: i. The Master emphasised at the 22 October 2013 hearing how important it was that those signing up to the Group Register knew what their cost liability would be and the risk of solicitors entering people onto the Register without having authority. ii. The lead solicitors’ protocol for entry onto the Group Register contained basic requirements for entry on the Register for each Claimant, one of which was “certification that at the time of entering a claim onto the Register that the client is not deceased.”

15. The Claimants referred to certain letters from the Defendant suggesting they did not require expenditure of obtaining a grant of representation for every Claimant as this would not be proportionate at that stage. Nevertheless it is clear from the correspondence Chronology items 17 and 21 that the parties were then dealing with Claimants who had died after their entry onto the Register. The Defendant was not at that stage aware that any of the Claimants who were on the Register had died before being entered onto it. It appears that the Defendant was not aware of this being the case with TC11 until the Individual Particulars of Claim were served on 20 February 2015. Tandem Law letters 15 May 2014, Defendant’s letter 12 June 2014 Nor was the case which the Claimants now advance in respect of TC11 pleaded in the Individual Particulars of Claim or in the Individual Reply. NB. The Chronology items up to that date must all be seen in that context.

16. In summary, on the first issue between the parties, in my judgment the position is as follows: i. The established law according to the first principle set out in paragraph 5 above is that a claim cannot be brought in the name of a deceased person. ii. The Claimants accept that, notwithstanding the Individual Particulars of Claim and the Individual Reply, the Claimant’s name was added to the Group Register in his personal capacity and not in the capacity of personal representatives acting on behalf of the estate. Even if it had been the second principle set out in paragraph 6 above applies. iii. The Group Litigation Order made on 6 November 2013, in accordance with the established law, provided that a person only became a party on the date of entry on the Group Register. I do not accept the Claimants’ submission that TC11 was, by virtue of the fact that there was only one claim form issued with the agreement of the Master, joined as of the date of issue of the claim form prior to his death. I reject the Claimants’ submission that he had some form of free standing action in the period from issue of claim form to the date of joinder onto the Group Register. iv. The fact that in the application for the GLO on 5 July 2013, TC11’s name was on the Schedule is not relevant for the following reasons: a. paragraph 4 of the GLO made it clear that the initial 20 individuals named as Claimants in the claim form issued were the ones who, at the time of the GLO, were parties to the litigation; b. the application of 5 July 2013, albeit that it named TC11 in a Schedule, did not apply for all those named to be on the GLO/Group Register at that stage.

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 . One of the issues there was that it was accepted by the Claimants that, for the purposes of proceedings within England and Wales, one of the Claimants (Ms Hind) had no title to sue in England and Wales without obtaining a Grant of Letters of Administration [2015] EWHC 3154 (Ch.) . His Lordship referred to the Paragraph 28 Millburn-Snell case in some detail and then considered a number of decisions of the Court of Appeal dealing with amendments seeking to introduce a cause of action arising out of facts occurring subsequent to the commencement of proceedings, at which time no cause of action existed. His review of those cases showed that the practice of the court had changed from the 1970s by the time of the decision of the Court of Appeal in Paragraphs 42 – 45 Maridive & Oil Services v CAN Insurance Co (Europe) Ltd . The [2002] EWCA Civ 369 ; [2002] 1 All ER (Comm) 653 Maridive case was not cited to the Court of Appeal in Millburn-Snell . Peter Smith J himself had followed the Maridrive case in Mid Town Limited v City of London Real Property Co Limited . In the [2005] EWHC 33 (Ch.) Meerza case he came to the conclusion that based on the authorities he had reviewed, not cited in Millburn-Snell , he had discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly. He said : Paragraph 46 “…it seems to me clear that that power can be used to ensure that any technical objections whether procedurally or a matter of law can be overcome provided it is just so to do.” Meerza 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 paragraph 5 above. The living Claimant in Meerza sued without having obtained the appropriate letters of administration. That is not this case.

18. The Claimants seek to use Meerza as a reason for stating that even if an action is a nullity it can be overcome provided it is just to do so. Firstly, I distinguish Meerza for the reasons set out above. Secondly, I have these serious concerns about the statement of principle that CPR 3 is 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: Peter Smith J did not specify which precise rule. It could be 3.1(m) or 3.10, or both i. The rule against allowing amendments to a claim to plead a subsequently arising claim is one of practice not law and can be departed from when the justice of the case requires . The change in approval in such cases derived from developments in the law relating to “relocation back” and amendment to the RSC at O18 R9 which specifically permitted amendment to plead any matter, even if it arose after issue of writ. See Lord Denning MR in Alfred C Toepfer v Peter Cremer [1975] 2LL.R 118, 125 See Vax Appliances Ltd v Hoover Plc [1990] RPC 656 ii. In Hendry v Chartsearch Ltd Evans LJ (with whom the other Lords Justices agreed) said that the rules had changed and, “In accordance with modern practice generally, the court has a general discretion which should not be restricted by hard-and-fast rules of practice, if not of law, such as that which is suggested here.” [1998] CLC 1382 iii. Mance LJ in Maridive made it clear that he did not “regard the present case as one where, as at the date when Moore-Bick J made his order allowing an amendment, the original claim could be said to be “incurably bad””. See also Mance LJ at paragraphs 34 and 37 where he emphasised that what was amenable to being cured in that case was an irregularity and not a nullity. Chadwick LJ Paragraph 23 said “There is no absolute rule of law or practice which precludes an amendment to rely on a cause of action which has arisen after the commencement of proceedings…”. Peter Smith J Paragraph 54 concluded that this statement by Chadwick LJ made it clear that any technical objection whether procedural or legal could be overcome provided it was just to do so. In my judgment it is not clear at all from those observations of Chadwick LJ; indeed the contrary is the case. The citation appears to me to be predicated upon the fact that if there were an absolute rule on law or practice precluding an amendment to rely on a cause of action arising out of the commencement of the proceedings, then the Court would not have a discretion. If I am wrong about that, the observations of Chadwick LJ are Paragraph 46 of Meerza obiter , as the Maridive case was one not of nullity but irregularity. iv. Although a judge must be cautious in making assumptions when a point has not been expressly argued before the Court of Appeal, I find it difficult to believe that the Court in Millburn-Snell would not have considered their wide discretion under CPR 3 to apply the overriding objective to enable cases to be dealt with justly, and so, in effect, decided the case Lord Neuberger of Abbotsbury MR, Hooper and Rimer LJJ per incuriam .

19. In my judgment, there is no such discretion where the claim is a nullity, as Millburn-Snell and the more historic decisions make clear it is. If Meerza 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 . 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. [2012] EWCA Civ 544; [2012] 1 WLR 3211 ; 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 Paragraphs 27 – 32 . Adams paragraph 36

20. In any event, if I had a discretion, I would not exercise it in favour of the Claimants in this case. I accept that in this massive case it is difficult for solicitors to keep track of Claimants but: i. I cannot accede to a submission that the lead solicitors could not have done more, and that it was not possible for them to know prior to issuing that TC11 had died. This is particularly in the context that he had died some seven months prior to his entry on the Group Register. There is no evidence whatsoever as to the steps taken by the lead solicitors to keep in contact with TC11 during the relevant period. ii. There is in evidence a copy of a protocol dated “version 30.01.2014”. This protocol is “For entry onto the Kenyan Emergency Group Litigation Register.” Amongst other things it provides: “The protocol is framed by our professional obligations to the Court to ensure that only genuine claims are progressed and each firm has checks and balances in place to ensure the validity of their clients’ case… Current basic requirements for entry on the Register for each Claimant…

22. Certification that at the time of entering the claim on the Register that they are not deceased.” This version of the protocol pre-dated the entry of TC11 on the Register. I am informed that he was not certified as not being deceased. There is no explanation as to why this was not done. At the CMC on 12 March 2014, two days before TC11 was added to the Register when deceased, Counsel assured the Court that the lead solicitors were following that protocol. I do not of course impute any wrongdoing to any of the Claimants’ lawyers on the basis of this. However, the absence of an explanation would inhibit the exercise of a discretion in favour of TC11. iii. Finally, it was accepted on behalf of the Claimants that they had not at any stage been misled by the terms of the GLO. In other words, their interpretation of it as being operative to include TC11 in the action from the date of issue of claim was not one which forced them to labour under any misapprehension. The submission based on the construction of the GLO was one of recent conception by the Claimants.

21. For those reasons, I strike out TC11’s claim as a nullity.