Claims on behalf of an Estate: Be aware of what can and what cannot be claimed - DAC Beachcroft

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Claims on behalf of an Estate: Be aware of what can and what cannot be claimed

Published 28 junio 2017

For Defence lawyers, it is essential to keep an eye on the claims put forward on behalf the Estate, and to ensure any early requests for interim payments do not result in damages being paid out for claims which fall outside of the remit of the Law Reforms (Miscellaneous Provisions) Act 1934 (LRMPA 1934); the Act governing the claims that can be brought on behalf of an Estate.

This article highlights how a Claimants' solicitors tried to circumvent statute and claim for probate fees at a very early stage of the quantum investigations and how a Defendant successfully resisted the claim.

The key provisions of the Law Reforms (Miscellaneous Provisions) Act 1934

The claims permitted under the LRMPA 1934 are General Damages (pain and suffering from the date of the alleged negligent act to the date of death) and funeral expenses. Probate fees are not permitted as confirmed in Dalton v South Eastern Railway Company (1858) and in Mosson v Spousal (2016).

Initial interim payment request to discharge a mortgage

Following the outcome of the liability claim, the Claimant's solicitors promptly requested an interim payment in the sum of £85,000.00 to discharge a mortgage on the Deceased's empty property. By this stage, three years had already passed since the index event. While the request for an interim payment appeared reasonable, the validity of this proposed head of loss raised suspicion.

There was also some mystery surrounding why the property had remained unoccupied for so long. An interim payment was made in the sum of £10,000.00, but it was clearly stated to be a general payment towards damages.

Claimant's Preliminary Schedule

This contained only two quantified heads of loss (out of fourteen). The claim brought on behalf of the Estate included the following (all to be announced): probate fees, legal expenses, and miscellaneous losses (for the cost of maintaining the unoccupied property). It was pleaded that the costs of preserving and ensuring the security of the property should be allowed.

It was again concluded that the claims arising out of the unoccupied property were unjustified, contradicting section 1(2)(c) of the LRMPA 1934. There was no evidence pointing to an individual related (or unrelated) to the Deceased who intended to use the property as it was not being let and there was no plan to put it on the market.

Claimant's without prejudice Schedule

A without prejudice Schedule of Loss was served, totalling over £1 million of which almost £66,000.00 was claimed by the Estate "in respect of probate fees" and "related legal expenses".

Settlement

Settlement was reached at a round table meeting in the total sum of £550,000.00. The final draft Order agreement included a breakdown of the settlement reached, which confirmed that £8,221.65 was apportioned to the Estate claim (General Damages and funeral expenses only). This confirmed that the Claimants were not confident in pursuing the claims for probate fees and legal expenses, or securing their approval by the Court.

Outcome

The case highlighted how claims outside of the remit of the LRMPA 1934 were pursued from the outset right up to settlement. The claims were resisted and, ultimately, failed. However, it can be seen how the Claimants tried to circumvent statute here. The clear lesson with specific reference to fatal claims is to scrutinise the claims being brought to be sure of their validity.

For further information, or to discuss this matter in more detail, please contact Benjamin Newall on 01962 705549 or email bnewall@dacbeachcroft.com.

Authors

Benjamin Newall

Benjamin Newall

Winchester

+44 (0)1962 70 5549

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