My client passed away after I issued their personal injury claim. What should I do?

I issued my client’s personal injury claim, but their executors informed me that they died of unrelated causes. How should I proceed?

Under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934, the cause of action survives your client’s death for the benefit of their estate.

You may need to inform the court of your client’s death so the proceedings are stayed until you have an opportunity to take instructions from their executors.

The court has general case management powers under part three of the Civil Procedure Rules (CPR).

Where there is a valid will and duly appointed executors, you need to:

• advise the executors on the prospects of success under the changed circumstances
• obtain their instructions on whether they wish to continue with the claim

If the executors wish to continue, and it’s in the interests of the estate, they will need to be substituted for the deceased so that they can proceed on behalf of the estate.

This is done by submitting a form N244 application notice supported by evidence setting out their interest in or connection with the claim under part 19 CPR and practice direction 19A.

Although the executors do not need a grant of probate at this stage, they cannot obtain judgment before probate because that is the only way they are allowed to prove title.

Your executor clients may also need a prospective costs order, so they’re entitled to recover their litigation costs via an indemnity from the estate.

An application for a prospective costs order is made under part 64 of the CPR.

Without such an order, executors engage in litigation at their own risk and bear personal liability for costs, which the residuary beneficiaries can then repudiate.