Defendant dies before deadline to serve a document on him expires

autoplay

I would like to know what happens to an order from the court requesting the claimant to serve a document on the defendant by a deadline if the defendant dies before this deadline expires

.I would like to know if an order to strike out a claim because the claimant has failed to serve a document on time on the Defendant is void, if the court made it after the defendant dies and without being aware that the Defendant died before the deadline expired.

I would like to know what is the rules concerning this issue

Keep_pedalling

The deceased estate would still be serve the document.

molerat

A bit confused by what has actually happened here - are you saying the court has struck out the claim on the basis the document was not served but the court was not aware the defendant was deceased ?

autoplay

The court has struck out the claim on the basis the document was filed on the court and served on the two Defendants one day late without being aware that one of the defendant has died

mybestattempt

https://forums.moneysavingexpert.com/discussion/comment/82001202#Comment_82001202

These appear to be the relevant facts:

• The court made an order (at a time when both defendants were alive) for the claimant to serve a document on the defendants by a specific time.

• The claimant breached that order of the court so the claim has been struck out.

• The claim was struck out because the failure of the claimant.

• The death of one of the defendants did not cause the claimant to breach the order of the court.

• The claim was struck out in respect of both defendants dead or alive.

• The claimant and the court were unaware of the death of one of the defendants at the date the court order was breached.

I haven't researched the CPR thoroughly so maybe wrong but I don't think the death of one of the defendants invalidated the court order as it was an order requiring the claimant to take action and at the time of death the deceased defendant's estate automatically steps into place.

In any event the only action open to the claimant is to make an application to have the claim reinstated.

The court would decide whether to reinstate (and against whom) based upon the full history and all the relevant facts of the case which we don't have here.

autoplay

I disagree with the court and I consider that I filed and the served the document on time.

The court struck out the claim saying there is no evidence that I served the document on the defendant even though in the order requesting that I served the document it is no requested I file a certificate of service

I filed and served the document by putting it in the letterbox of the court and of the Defendant on time. Hence, I filed and served this document on time. The problem is that because the court has not requested that I filed a certificate of service the court was not aware that I filed and served on time was on time

The problem is also that I sent also this document by post recorded delivery in case the copies I put in the letterbox of the defendant and of the court were lost and it is this copy which was one day late . And, it is also why the court struck out my claim

The second Defendant failed for two months to inform the court and me of the death of the first Defendant

In the order to strike out the court made reference to the first Defendant even if at this time it was dead and it sent it to him even though I was dead.

Hence, I think that this claim should have stayed after the death of the first Defendant (and as a consequence this order striking out the claim should not have been issued) so that the court decides how to proceed with this claim and all orders are sent to the person appointed to represent the estate of the first defendant

mybestattempt

https://forums.moneysavingexpert.com/discussion/comment/82001643#Comment_82001643

If you disagree with the strike out then make an application to the court to have the claim reinstated. Outline all your reasons supported by any evidence.

autoplay

In the order striking out the claim it is stated that because the decision to strike out was not taken at a hearing I can make an application for “relief from sanction” according to CPR 3.9 to have it reinstated

An application for “relief from sanction” is when a party has made something wrong for example he has not complied with a court order and the claim has been struck out and he asks the court to forgive him.

This means that if I make an application for “relief from sanction” I admits that I have not done something wrong and that I have not complied with an order of the court but I disagree that I done anything wrong.

Hence, I would like to know which kind of other application can I make to have my claim re-instated as soon as possible

autoplay

The order of the court says that I have to serve a document on the two Defendants by a specific date.

If one of the two Defendants dies, does this means that this order disappears because it could not complied with anymore because I cannot serve a deceased person?

And, does this mean also that the claim should have been stayed until a representative of the estate of the deceased Defendant is appointed and the court issues a new order requesting me to serve the document on this representative?

mybestattempt

https://forums.moneysavingexpert.com/discussion/comment/82002157#Comment_82002157

CPR 3.9 does not require an admission of wrongdoing by any party, all the circumstances of the case are taken into account.

You may find this article helpful:

https://civillitigationlawyers.co.uk/relief-from-sanctions-under-cpr-3-9/#google_vignette

https://forums.moneysavingexpert.com/discussion/comment/82002157#Comment_82002157

A judge will decide, when considering a CPR 3.9 application, about the validity of the order and will take into account what should have happened if the court and/or the claimant had been notified earlier about the death of one of the defendants.

autoplay

The order of the court which says that I have to serve a document on the two Defendants by a specific date may not valid anymore following the death of the first defendant also because this order requested also that the Defendants replied to the document that I served on them and a dead Defendant cannot reply to a document