What happens to a claim if the defendant dies?

What happens to a claim if the defendant dies?

Significant Court of Appeal decision on holiday pay

A German federal court recently ruled that the widow of former German Chancellor, Helmut Kohl, is not entitled to receive the €1m damages he had been awarded in his breach of privacy rights claim against his ghost writer.

The claim was ongoing at Kohl’s death as he was seeking a larger award. His widow pursued the claim as the sole beneficiary of Kohl’s estate, but the federal court concluded that she had no right to the award because the claim, being for a breach of personal rights, cannot be maintained if the injured party dies. 

What happens to claims in England and Wales if the claimant or defendant dies during a dispute? Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 (“the Act”) provides that “causes of action” survive death. Causes of action are the legal ingredients (elements) necessary to bring a particular claim. For example, the elements of the cause of action for a negligence claim consist of a duty of care owed by the defendant to the claimant, a breach of that duty by the defendant, damage suffered by the claimant resulting from the breach, and resulting losses that are legally recoverable from the defendant. All the elements of a cause of action must be present at the date of death for the claim to survive death, save that if damage is suffered after the date of death, the Act will operate to deem that it subsisted before death. The Act does specifically exclude two types of claim from surviving death - defamation claims and bereavement claims under section 1A of the Fatal Accidents Act 1976. On this basis, Kohl’s widow would have been able to pursue the claim had it been brought in England and Wales. 

However the position is a bit more complicated than the Act would suggest. For example, there must be a complete “cause of action” at the date of death for the claim to survive. Some claims such as those made under The Inheritance (Provision for Family and Dependants) Act 1975 are deemed not to be causes of action. Claims under this act allow people who are financially dependent on another person who dies, but whose will does not provide a reasonable financial provision for them, to apply to the court for such provision to be made. The courts have held that such claims require the court to determine whether or not reasonable financial provision has been made for the claimant, and until that determination is made there is no “cause of action” but "a mere hope or contingency". Because there is no cause of action, such claims do not survive the death of the claimant. This was confirmed in Roberts and Milbour v Fresco [2017] EWHC 283 (Ch)).  

Other statutory provisions may affect the survival of a claim, for example under section 26 of the Trustees Act 1925 personal representatives can assign or surrender leases where the covenants are particularly onerous.  

Most contract claims will survive death of either party, but it will depend on the terms of the contract. For example, contracts requiring personal services or where an individual was engaged for a particular skill may not survive if the deceased had not completed performance of those services.

If the claim survives the death of the claimant, the executors named under the will (and otherwise the personal representatives) effectively step into the shoes of the deceased and are entitled to continue with the claim on their behalf, once of course probate has been dealt with. 

Similarly, if the deceased dies whilst they themselves are being sued, the executors will need to deal with the claim as part of the estate administration (often being required to seek the consent of the beneficiaries of the estate to their intended response to the claim). 

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