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Litigant passes away mid trial

  • 16-09-2020 8:41am
    #1
    AnRothar
    Registered Users, Registered Users 2 Posts: 596 ✭✭✭


    I was following the thread here an I have a question.
    Suppose A is sueing B and the matter is in court and either A or B passes away.
    What happens to the on going litigation?


Comments

  • #2
    Peregrinus
    Registered Users, Registered Users 2 Posts: 26,690 ✭✭✭✭Peregrinus


    AnRothar wrote: »
    I was following the thread here an I have a question.
    Suppose A is sueing B and the matter is in court and either A or B passes away.
    What happens to the on going litigation?
    Depends on the nature of the claim, and on whether it is the plaintiff or the defendant who dies.

    For example, if I'm suing you for defamation and I die, that's it; case closed. Each side bears their own costs.

    But if I'm suing you to recover a debt that you owe me and I die, my executor/administrator can continue the action on behalf of the estate. Same goes if you die; I can continue the action against your estate.

    On the other hand, if I'm looking for relief that can only be provided by you personally - for instance, I'm asking the court to make an order restraining you from harrassing me - the action becomes pointless once you're dead, so it gets discontinued.

    You can also have the situation where, in theory, the action could continue but, in practice, it can't succeed because, e.g. the plaintiff, who has just died, hasn't given evidence yet and without the plaintiff's evidence the action is certain to fail.


  • #3
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,750 Admin ✭✭✭✭✭hullaballoo


    Peregrinus wrote: »
    Depends on the nature of the claim, and on whether it is the plaintiff or the defendant who dies.

    For example, if I'm suing you for defamation and I die, that's it; case closed. Each side bears their own costs.
    [...]

    You can also have the situation where, in theory, the action could continue but, in practice, it can't succeed because, e.g. the plaintiff, who has just died, hasn't given evidence yet and without the plaintiff's evidence the action is certain to fail.

    Not quite so - this was previously the case but section 39(2)(a) of the Defamation Act 2009 preserves a cause of action for defamation to the benefit of a deceased plaintiff's estate.

    However, sub-subsection (b) essentially limits the claim to special damages. Also your point about the evidentiary deficit that will arise where there is no plaintiff to give testimony would be an important consideration in bringing an action post mortem for special damages for defamation.


  • #4
    SetOverSet
    Registered Users, Registered Users 2 Posts: 421 ✭✭SetOverSet


    AnRothar wrote: »
    I was following the thread here an I have a question.
    Suppose A is sueing B and the matter is in court and either A or B passes away.
    What happens to the on going litigation?

    ss 7 & 8 of the Civil Liability Act are, I believe, the statutory basis for the action surviving for or against the deceased's estate.

    From a practical point of view, it involves an ex parte application pursuant to RCC Ord 22, r 4 in the Circuit Court or RSC Ord 17, r 4 in the High Court.


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