Practice and Procedure


PUBLISHED July 10, 2003

The executrix of an estate was entitled to bring a claim for negligence against solicitors where the loss was suffered by a beneficiary of the will and not the executrix herself as, during the time of the loss, the property was vested in the executrix.Appeal from the refusal of Cowell J to strike out part of a claim brought against the defendant solicitors ('SB') by the claimant ('C') in her capacity as the executrix of a will. The deceased died on 24 December 1995. C was appointed as the sole executrix of the deceased's will, which made certain specific bequests and bequeathed the residue of the estate, which residue included two properties, to a church ('the PCC'). C instructed SB to act on her behalf in the administration of the deceased's estate. C claimed that between 1996 and 2001, when C terminated SB's retainer, SB did nothing to progress the administration of the estate. This resulted in the two properties remaining empty for roughly five years. C was granted probate in 2001 and distributed the estate in accordance with the will. C claimed against SB for the loss of income from the two properties during those five years on the basis that, had SB acted in accordance with their duty, the PCC would have benefited from the income from the two properties from, at the latest, July 1997. SB applied to strike out the claim on the grounds that the claim was bound to fail as any alleged loss must have been suffered by the PCC and not by C. Cowell J accepted this argument but refused to strike out the relevant part of the pleading on the grounds that a claim somewhat along the lines pleaded might nonetheless succeed. Cowell J said that the PCC might seek to claim damages from C for her failure to administer the estate efficiently or properly and in those circumstances C should be able to obtain an indemnity from SB in respect of any such liability as she might have to the PCC.HELD: (1) There was no suggestion that the PCC was contemplating bringing proceedings against C. The only involvement of the PCC had been to indicate that it was prepared to be joined as a party in the proceedings. As a matter of law a person who was appointed executor under a will could not be held liable for any losses which accrued to the estate or to the beneficiaries as a result of a prolonged delay before the will was proved. Cowell J's reasoning was therefore flawed. (2) The question was whether it was justified that, even though the income from the properties would be paid to the PCC as devisee, it was nonetheless C who was entitled to sue for the recovery of this loss of income. (3) It would be wrong if SB escaped any liability for damages merely because of a dichotomy between who could claim against them for a breach of duty and who actually suffered the damage. (4) Given that any damages would ultimately come to PCC, irrespective of who had the right to sue, the question of who brought the proceedings was not of great significance. The essential point was to ensure against double recovery (see Johnson v Gore Wood & Co (2002) 2 AC 1). As the PCC were prepared to be joined as a party to the action there was no danger of double recovery. (5) The present action was properly constituted in that there was a cause of action vested in C as the executrix of the estate. It was appropriate to treat C as representing the interest of the owner of the property and therefore the person entitled to recover damages. The loss in the present case was suffered during the time that the properties were vested in C (albeit wrongly, owing to the breach of duty by SB). (6) It was competent for C, as executor of the deceased's will, to bring proceedings against SB for damages arising out of the income lost on the properties as a result of any breach of duty of care on the part of SB.Appeal dismissed.

[2003] EWHC 1644 (Ch)