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be payable by the defendant or his insurers. The
case may arise in which proceedings brought by
the personal representatives are unsuccessful in
which event the question o f the fund out o f which
the costs may be paid is a vital one for the plaintiff
and his solicitors.
In a recent case the deceased met his death as the
result o f a fatal accident on 15th November, 1950.
Proceedings were instituted hy his widow under
the Fatal Accidents Acts on 9th February, 1951.
The deceased had died intestate but the Grant of
Administration had not been obtained on the date
when proceedings were instituted. The grant was
subsequently obtained by the plaintiff before delivery
o f a statement o f claim.
In Ingall
v.
Moran (1944, 1 All E . R. 97) the
plaintiff sued as administrator o f his deceased son’s
estate for damages recoverable under the Law
Reform (Miscellaneous Provisions) Act, 1934, for
loss o f expectation o f life and expenses occasioned
through an accident arising from the defendant’s
negligence in driving a lorry in pursuance o f a
public duty. The plaintiff’s son died intestate.
The writ in which the plaintiff was described as an
administrator was issued before letters o f adminis
tration were extracted. It was held by the English
Court o f Appeal that an administrator as such
had no cause o f action vested in him before he had
obtained letters of administration and that the
doctrine o f relation back of an executor’s title when
the grant o f probate has been obtained has no
relation to an action commenced by the adminis
trator as such before the grant is made and
accordingly that the plaintiff had no cause o f action
at the date o f the issue o f the writ and that the
action failed. The consequence in that case was
that as the Public Authorities Protection Act applied
a new action could not be started.
In Hilton
v.
Sutton Steam Laundry (1945, 2 All
E. R. 425) the plaintiff was the sole dependant of
her husband who died as the result o f an accident.
Before obtaining a- grant o f administration she
issued a writ as administratrix o f the estate o f the
deceased claiming damages for negligence under
the Fatal Accidents Acts and the Law Reform
(Miscellaneous Provisions) Act, 1934. Before the
case came to trial the Court o f Appeal delivered
their decision in Ingall
v.
Moran, and accordingly
the proceedings under the Law Reform (Miscellan
eous Provisions) Act, 1934 were a nullity. The
plaintiff then tried to amend her writ and statement
o f claim by deleting the words “ as administratrix
o f the deceased’s estate ” so that the claim would
be in her individual capacity as a dependant under
the Fatal Accidents Acts. The application to amend
was refused. The plaintiff was statute-barred if
she had to start a new action as a dependant.
These authorities show that where a plaintiff
sues under the Fatal Accidents Acts before obtaining
a grant of administration to the estate of a deceased
person who died intestate she must sue in her per
sonal capacity as a dependant for the benefit of
herself and the oth:r dependints and not as adminis
tratrix. An action brought as administratrix would
be a nullity and the subsequent issue o f the grant
of administration would not validate it. I f the
plaintiff sues as dependant only the estate is in no
way concerned and cannot be responsible for the
costs.
I f the plaintiff first obtains the grant o f adminis
tration and subsequently institutes proceedings will
he be entitled to pay the costs o f the proceedings
out o f the estate ? There seems to be no decision
exactly on the point although it must arise in a
number of cases. Lord Green, M.R. in the course
of his judgment in Hilton
v.
Sutton Steam Laundry
mentioned above said—“ Under the Act o f 1846
the person to bring the action was the legal personal
representative, not for the benefit o f the estate but
for the benefit o f the dependants and by the amend
ing Act o f 1864 a dependant was entitled to bring
an action where there was no personal representative,
or, if there was, if the personal representative
failed to bring proceedings within six months.
Whichever is the form o f action the result is precisely
the same because the money recovered does not form
part o f the estate o f the deceased person but goes
as through a conduit pipe to the dependants who
are entitled.” From this judgment it seems to follow
that the estate as such is not interested in the result
o f the action and that the costs should not be paid
out o f the assets to the possible injury o f the cre
ditors, who could not hope to benefit from the
result of the action if it were successful. It seems
that the correct view is that the personal representa
tive in an action under the Fatal Accidents is brought
in only as a matter o f convenience to constitute the
action and that the estate is unconcerned with the
proceedings and should not bear the costs.
Solicitors who must contemplate the possibility
that proceedings under Lord Campbell’s Act may
be unsuccessful should take the appropriate steps
to obtain security for the costs from the beneficiaries
either as a charge on their respective shares in the
estate or otherwise.
DECISIONS AFFECTING
SOLICITORS
I f a solicitor negligently fa ils to keep his client informed
o f the true state o f the law, are nominal damages sufficient
in an action against the solicitor f o r negligence
?