The Gazette 1952-1955

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 ?