What Happens When Your Opponent In Litigation Dies

May 2013

What Happens When Your Opponent In Litigation Dies

The general rule is that the death of a party to an action does not mean that the case ceases, but instead the right to pursue it survives, for the benefit of, or against, the deceased’s Estate.   

The Personal Representatives of the Estate step into the shoes of the deceased and have the authority to take part in any further legal proceedings, either by defending them or pursuing them.

This is frequently a difficult choice for the personal representative to make and they will often have to make applications the court for directions known as "Beddoes applications", so that they have appropriate cover against any later orders in the proceedings by name by being able to say that the court felt there action was reasonable.

An unusual case relating to the death of a party during proceedings was dealt with recently.

This was the case of Harvey Smith v. Bobby Dha 2013 EWHC 838 (QB)) which were defamation proceedings involving two individuals who had been members of an internet site called Scooobynet which was dedicated to Subaru cars

The Claimant brought a claim for defamation against the Defendant after he had posted a comment about price fixing, although the Claimant suggested it was actually a joint venture by the two of them.

The Defendant made an application to strike out the action and this was heard in October 2012, when Judgment was reserved to be delivered later.  On 7 November 2012 the Claimant died.

The unusual position here is that this defamation is an exception to the usual rule which is specifically provided for by statute, so that when a party bringing a defamation claim dies, the cause of action dies with them.

The Defendant wanted to have the judgement delivered so that they could take advantage of an order against the Claimant's estate and argued that a judgement can be backdated to the time of the hearing so that it did not happen before the claim disappeared with the death of the Claimant.

However the High Court refused to deliver a Judgement after the end of the case, given that in this case basis that the person’s right of action dies with the person.

The argument was attempted that although the claim had died with the Claimant, this did not prevent Judgment being given later and backdated to give effect. However the Court was very clear that the Civil Procedure Rules make it clear that it is not possible to insert an earlier date on any subsequent Judgment.

If you have any questions about any litigation you are involved in, either by bringing it defending it, please get in touch james.couzens@parrottandcoalesllp.co.uk