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Buachaill, Barrister
Category: Law
Satisfied Customers: 10984
Experience:  Barrister 17 years experience
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My elderly mother suffered because of a pharmacy dispensing

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My elderly mother suffered because of a pharmacy dispensing error that made her very ill and shortened her life. On her behalf I pursued a claim for her personal injury. Although liability was admitted from the outset, the defendant spent two years whittling down the amount of damages from £32,00 to a mere £8,000 and eventually paid them a week or two before she went into hospital for the final time, where she died. She never benefitted from the damages. Within the £8000 was quite a large sum claimed by the personal injury solicitor acting for us, for expenses I incurred over a two year period, mostly petrol, stationery, phone calls etc. directly related to her claim, which was to be refunded to me when the damages were received, but my mother was far too ill by then. A few weeks later she died. Had my mother lived, I would not have accepted this money back from her, but since she died I feel I need to claim it as I am very out of pocket. I have asked the solicitor (not the same one) who is dealing with my mother's estate to refund these expenses but she says her 'understanding' is that the damages amount was subsumed into the rest of my mother's assets and an amount within it cannot now be separated out. She has been mistaken on another legal point mother's affairs, so I am not 100% confident of this point of view. Is it totally legally sound? I wonder if I can be regarded as a creditor of the estate in order to claim the amount involved?
1. Yes, you would be considered a creditor of your mother's estate to the extent you maintained the legal action on her behalf and recovered monies. So you can sue her estate for the monies owing. The monies owing are in the nature of a debt. So you should particularise all the expenses which you incurred and send them to the executor of the estate of your mother. Additionally, if you no longer have details, you should ask the solicitor to whom you paid the monies to provide you with an account of all payments by you to the solicitor who handled the personal injury action against the pharmacist. In that way you will have a clear account of what was paid on your mother's behalf.
Customer: replied 2 years ago.
Thank you. I do have a clear idea of what I paid out that was claimed on my behalf - in the Schedule of Loss - the part re. my expenses is very clear and has separate totals from the rest of the schedule. I sent this to the estate solicitor but I do not think she has read it. To my mind the following is a separate issue, so I did not mention it earlier, in case it muddied the waters when you read my question, but you might feel it is relevant - I am a joint executor and beneficiary (one of three ) of my mother's estate. The other two executors are probably unwilling to allow me the expenses refund as they will share equally in what is left when my mother's estate is finally divided.
Customer: replied 2 years ago.
Can I really prove that I have a 'debt' owing to me from the damages awarded to my mother? I think this is the key question. The damages were for her but contained within them was the amount of my expenses which she expected to refund me and was to happy to do, but she never got the chance because of the delay in settling the case. Does this have any legal weight?
Thank you for your advice on this.
Customer: replied 2 years ago.
Looking at your answer again, I do not really understand the last three lines, especially about payments to solicitors. I have not paid a solicitor. Is it possible you think I am wanting to claim the whole of the damages award to my mother? This is not the case.
2. If you are making a claim against the estate and you are executor, then you can either not participate in the decision whether to pay you or not. However, if you have to sue your mother's estate, you will have to resign your position as executor in order to maintain your legal action. This is because there is a clear conflict of interest between representing the estate as executor and personally litigating against the estate. So if the other two executors will not admit your claim, then you will have to resign your position as executor and sue the estate if you want the monies.3. You do not have a debt owing from the damages award to your mother. You simply have a debt owing by your mother and now she has died, by her estate. There is no distinction between your mother's money between her damages award and her other assets. It will be a question of evidence whether you are owed the money, but obviously if you can point out that your mother intended to reimburse you these monies, that will help your case.4. My reference to paying money to solicitors arose from the fact you suggested that you "maintained" the claim. To a lawyer that suggest you were directly helping with the claim and its expenses. However, if that wasn't the case, then you can still sue for the monies. I only suggested asking the solicitor for an account as there would be a record of all payments made.5. Please RATE the Answer as unless you RATE the Answer your Expert receives none of the monies you have paid the website so there is no incentive to answer any further questions.
Customer: replied 2 years ago.
Thank you for this. I would like to phone you but my landline phone stopped working today and I am currently charging batteries on a new phone and cannot yet use it. I may be able to borrow a mobile a bit later. How long are you there this evening?
6. I am sorry but I am unable to take or receive a Phone Call as I am not in the same country in which I live. If you have any further queries, please write them here and I will answer them. However, do RATE the answer.
Buachaill and other Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks. I must remain my mother's executor and carry out her wishes, and certainly cannot sue the estate. My difficulty is to get the other two executors to agree to my refund, but they are likely to block my mere requests. I will therefore try to persuade the solicitor that I am a creditor and the estate owes me the sum concerned as a debt. With the definite information you have given me I feel encouraged to pursue this line. Thank you
7. You are welcome.
Customer: replied 2 years ago.
Is there a time limit for claiming these funds as a debt? My mother was injured by the dispensing error in 2010 and died in 2012. Her estate is still not yet fully settled. I have been requesting the money as expenses throughout this time, but if I now switch to asking for the money as debt repayment, can I be turned down on grounds of time limit?
8. There is no difference in law between claiming the money as expenses or claiming the money as a debt repayment. Essentially, they are the same claim so the time you first made the claim (for expenses) stopped the limitation period. So you are within the six year time limit to make a claim. However, you have to issue legal proceedings to stop the clock for the purposes of the Limitation Act, 1980.
Customer: replied 2 years ago.
I have now been informed by the solicitor dealing with the estate that I cannot claim back the expenses I incurred when pursuing the personal injury claim for my mother, as personal injury damages are "different" from other funds in the estate, and cannot be the subject of a debt to someone else (me). Even an allowable debt would have to be agreed by the other executors, and there is no way they will refund me voluntarily. When I was pursuing my mother's claim and looking after her (a lot of daily travel) when she was ill due to the injury, the other two executors, her sons, incurred no such expenses as they simply did not involve themselves in her care. They could have done, but did not. What can I do to recoup the refund? My petrol expenses in going daily to look after my mother (I live thirty miles away) were funded at the time by my partner, and I need to repay him. Thanks.