Introduction

For executors and administrators of estates it is important to have clarity as to the timeframes within which claims can be brought against the estate they are administering. Heirs and legatees can only bring a challenge against the estate of a deceased within a year and a day of the death of the deceased or the date of issue of any grant of probate, these claims include for example seeking to enforce forced heirship rights. This is why executors and administrators will retain the estate until this time limit expires.

The position in relation to claims by third parties against estates however was not, save for in certain limited situations, as clear. Many people had suggested that, except in the case of tortious claims, the prescription period would be the same year and a day period as applied to claims by heirs to the estate. This issue had not been specifically considered by the Jersey Courts, but in Pickersgill v Young [2021] JRC 264 the Jersey Court considered a claim brought by the plaintiff against the estate of his deceased doctor more than a year and a day after he had died. The Court considered the issue of what was the relevant prescription period applicable to the claims against the deceased doctor's estate and held that the claims were not prescribed.

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Prescription and its purpose

Legal claims can only be brought by a plaintiff within a limited period of time. Any prospective plaintiff missing this deadline is prevented from pursuing a claim as the prescription period having expired provides the defendant with a defence to the claim. Prescription promotes certainty for the parties or potential parties to litigation who can be sure that historic claims cannot be resurrected after a certain period of time.

On the other hand, litigants unaware of prescription periods can face harsh consequences and this position is not helped by the fact that those time limits vary for different types of action. The relevant periods for the different actions are not defined in one single statute, but derived from a mix of statute and customary law as set out in the judgments of the Jersey Courts.

One year and one day: time limit for claims about estates

The case of Robertson & Anor v Lazard Trustee Company (C.I.) Limited [1994] JLR 103 established that there is a year and a day time limit for heirs and legatees to claim against the estate of a deceased person, unless limited exceptions apply. Claims brought outside this period would be prescribed.

This rule is important to executors and administrators as they will refrain from distributing the assets of the estate until after this time period had passed. During that time, they can advertise for claims with a view to ensuring that the estate is not subject to legal challenges. It is also during this period, that an executor can apply to the Court for directions in respect of the estate for example, if there is any ambiguity in a will.

Uncertainty remained as to whether this year and a day rule applied to challenges brought by third parties as well. Many considered that this period applied to all claims against an estate except for those where the prescription period was otherwise specifically provide for in statute. For example claims in tort against an estate are required, by the provisions of Article 1(4) of the Customary Law Amendment (Jersey) Law 1948, to be brought within six months of the deceased person’s personal representative taking out a grant of representation.

The facts of the Pickersgill case were relatively straightforward. The plaintiff issued a claim for damages for personal injury after suffering a stroke, which had been caused by uncontrolled hypertension that he claimed one of the defendants, his GP, failed to diagnose. A claim was brought in contract and another one in tort.

Prescription attached to breach of contract claims against an estate

The contract arose out of the fact that Mr Pickersgill paid the defendant, Dr Young, for his services as a general practitioner. The contract was said to have been breached by the doctor when he failed to diagnose his patient's condition which later led him to suffer a stroke. The prescription period for contract law claims in Jersey is ten years, running from the date of the breach.

Prescription periods for claims in tort against an estate

Pickersgill also concerned a claim in tort arising out of the injury suffered by the plaintiff. Under Jersey law, the standard prescription period for claims expires three years after the date of the damage complained of. In this case, the damage was the pain and suffering caused to the plaintiff by the stroke, the additional care he required since the incident and the loss of earnings that followed.

The interesting complexity of the case is that a claim was being brought against the estate of the late doctor who had failed to diagnose the claimant's hypertension. The Court found once again that the claim was not subject to the year and a day rule. As the claim was against a deceased, , the Court also found that the three year time limit did not apply as a result of the Customary Law Amendment (Jersey) Law 1948. This provides that claims in tort against a deceased are not maintainable unless proceedings are taken before six months after a grant of probate. (On the facts, the Court found this time limit had effectively been extended by agreement between the parties prior to its expiry.)

Empêchment de fait: suspension of prescription and medical negligence cases

In respect of both the breach of contract and the tort claims the Court considered and applied the doctrine of empêchement de fait which, if successfully argued, can suspend the running of the prescription period while the plaintiff is suffering an empêchement. The concept of empêchement is specific to Jersey (and Guernsey) law and refers to an impediment preventing a plaintiff from bringing a claim. An empêchement de fait covers situations where the facts make it practically impossible for litigants to bring proceedings to uphold their rights.

In Pickersgill, the empêchement de fait arose out of the fact that it was practically impossible for the plaintiff to bring a claim until he was aware of the breach himself, that is to say when he realised his doctor's conduct fell below the standard which could be expected from a reasonably competent general practitioner. The Court held that the plaintiff uncovered the breach of contract and tortious duty of care when he suffered a stroke (and not from the earlier point of his hypertension diagnosis).

The Court held that a serious medical condition being suffered might cause a person to obtain advice on their previous treatment and unless and until someone says their treatment fell below an acceptable standard, time should not start to run for the purposes of such claims. The Court also stated that it was only at such a stage that a plaintiff had knowledge of the facts to plead a claim as distinct to having knowledge of a remedy.

The Court observed that its conclusion were supported by the duty on legal advisers to only plead cases that can be justified and that plaintiffs who commence litigation without expert evidence supporting their assertion that the treatment they had received fell below an acceptable standard would be at risk of severe criticism from the Court.

This determination meant that the claims being advance by Mr Pickersgill against the estate were not prescribed.

Where Pickersgill leaves Executors

The Jersey Court has provided welcome clarity as to the relevant prescription periods applicable to claims against estates in Jersey by third parties. Claims can be brought by third parties against the estate of a deceased long after a year and a day as this prescription period does not apply to their claims. In contrast, the traditional year and a day time limit continues to apply to challenges brought by heirs.

Executors and administrators, who traditionally retain the estate for a year and a day to avoid legal challenges, may be concerned that the time limit for third party contractual claims against the estate is ten years. They should nonetheless continue to advertise for claims before winding up the estate, and should not delay distributions any longer than is necessary. From a practical point of view, third party creditors claiming after a distribution has been made may face enforcement issues as heirs and legatees could have dissipated the assets and, the Court in Pickersgill suggested, may be able to rely on a change of position defence. The prospect of those enforcement difficulties alone could act as a deterrent to any potential litigant but executors and administrators will need to be mindful of the risks when distributing an estate.