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Home > ATE Caselaw > West (Executor of the Estate of the late Kenneth Morriss) v Burton (2021)

West (Executor of the Estate of the late Kenneth Morriss) v Burton (2021)

West (Executor of the Estate of the late Kenneth Morriss) v Burton (2021)

The Background

On 8th April 2016, Kenneth Morriss was involved in a road traffic accident with Peter Burton.  Mr Morriss instructed solicitors, who submitted his claim via the Portal to Mr Burton’s insurers.

Liability was not admitted and as per the protocol, the matter ‘exited’ the Portal on 8th July 2016.  On 14th July 2016, Mr Morriss died.  His death was not connected to the accident.

Medical experts were subsequently instructed and a report provided to the insurer.   A Part 36 offer was made by the insurer to  ‘Mr Kenneth Morriss’, to settle the claim in the sum of £1,375.00 plus costs.  Proceedings had not been issued at this point.

Solicitors accepted the insurers offer on the same day.  In the meantime, the probate of the estate had been granted to Mr and Mrs Anthony West, on 20th March 2019.  This Grant was subsequently provided to the insurers.

Once the offer was accepted, a dispute arose as to whether costs should be calculated under of Part 45 of the Civil Procedure Rules.  It is usually the case that costs calculated under section II, Part 45, are greater.

The Issues

The case was initially heard by on 3rd December 2019 in the Liverpool County Court, where it was held that the Claimant’s argument, that the costs should be dealt with under Section II of Part 45 CPR, was correct.  He accepted the argument that the claim which was settled was that of West as executor, not the claim initially notified by Morriss.  He ordered that fixed recoverable costs and disbursements were payable to the Claimant.

In October 2020, Judge Graham Wood QC dismissed the defendant’s appeal, with costs awarded to the Claimant.

The Defendant continued to argue that because of the non-admission of liability, the claim no longer continued to be under the protocol and it thereafter could not re-enter it. The claimant submitted that whilst Morriss had started a claim by his issue of the CNF via the portal, that was not the claim which was the subject of the settlement


In a further Appeal in June 2021, Sir Nigel Davies considered that the previous judgment had been correct.

He stated,

In this case the claim that was settled was that of Mr West. But Mr West was not himself the person who started the claim, within the meaning of the protocol,

He went on to say,

‘I agree with the judge that the outcome would have been the same even had the claim not exited the portal. The provisions of Section III would not have come into play; and this would still have remained a Section II case.’


It is clear following these rulings, that the more generous costs regime of Part 45, section II should apply, when someone dies before their case concludes.

Although the sums involved in this case were modest, this will be a welcome ruling for Claimants, as it has the potential to affect thousands of cases in the pre-action protocol for low value PI claims.

The full judgement can be found here

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