Fatal Claims – without the correct documents, the claim is void

An NHS Trust has recently received the benefit of a wasted costs order, in a case where the Claimant’s Solicitor had forgotten to ensure that the instructing client had Letters of Administration before they issued proceedings.

As a reminder, when a claim is brought on behalf of the Estate of a person who has died, the person bringing that claim must be authorised to do so. They can be named in the Will and then apply for a Grant of Probate to act on behalf of the Estate. However, where there is no Will (intestate) then they must apply for Letters of Administration before a Claim Form is issued. If the Claim Form is issued without Letters of Administration, it is void. 

The distinction between a case where there is an Executor (named in the Will) or an Administrator (having obtained Letters of Administration) is an important one that can often be overlooked.

An Executor derives their authority by being stated as the named Executor in the Will. Therefore, it is possible for the Executor to instruct solicitors to commence a claim (and issue proceedings) on behalf of the Estate. However, the Court will wish to see the Grant of Probate before a final order is made, so in practical terms, a Grant of Probate should be obtained at the outset of the claim.

Where the Will does not name an Executor, Letters of Administration must be obtained by a person who is seeking to issue a Claim Form on behalf of the Estate.

In pre-action cases  (where cases may settle before Court proceedings need to be issued) there may be less of an issue. However, many Insurers will still request to see the Grant of Probate or Letters of Administration before the damage payment is released (even if pre-action).

Lessons

Therefore, in practical terms, it is vital to always check whether a Grant of Probate or Letters of Administration have been obtained, at the outset of the claim. To proceed to investigate the claim without having seen the required documentation that authorises the claimant to act on behalf of the Estate could result in wasted costs and puts clients at risk.

Clues that there may be problems may be seen in cases where the Claimant seeks prolonged limitation moratoriums or serves draft Particulars of Claim. It would be wise for a Defendant to immediately seek clarification on the issue before the matter proceeds further (and consider a Part 18 Request if the information is not forthcoming).

As well as being specialists in dealing with clinical negligence claims, Clyde & Co’s Healthcare team provides advice on all healthcare issues, including regulatory and inquests, to NHS Trusts, GPs and private healthcare providers. If you would like to find out more please contact Adam Hudson or Claire Petts.