England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		18th December 2003

Thursday, 18th December 2003

MR JUSTICE GIBBS:


1. This case involves an unfortunate and distressing dispute between the claimant and the second defendant, about the release of the remains of the late Mr Imadul Haqq, whom I shall call the deceased, who died on or shortly before 6th December 2003. His remains are currently held on behalf of the coroner for Inner West London, Dr Knapman, who is the first defendant in this claim. On 22nd September he refused the claimant's request to release the remains of the deceased and this hearing is a judicial review of that decision.
2. The deceased, and indeed the claimant and the second defendant, all originate in Bangladesh. The claimant and the deceased were married in Bangladesh on 6th February 1965. They came in 1966 to England. They did not come at precisely the same time, but from 1966 onwards they made their home in England. They had four children. On 6th July 1967 Jannat Haqq was born, she is now aged 36. On 23rd August 1968 Mohammed Haqq was born, now aged 35. He unfortunately suffers from a disability. On 11th March 1978 Laila Haqq was born, she is now 25. On 15th December 1981 Salima Haqq was born, she is now 22.
3. The claimant and the deceased lived together until 1993, but by then the marriage had come into difficulty and the two of them separated. There were proceedings in relation to the marriage at the Wandsworth County Court. The documentary evidence before the court discloses only an application by the deceased for an injunction to permit him return to the matrimonial home. It appears, however, from the claimant's evidence, that she, either then or previously, took proceedings to have him excluded from the matrimonial home. Those details have some relevance as will later appear.
4. The claimant, and in particular their children, remained in contact with the deceased. The deceased took up residence in a council house not far away and the children kept in touch with him. There were also meetings, the extent of which is not entirely accepted between the parties, between the claimant and the deceased, despite their separation. Those meetings appear to have concerned the interests of the children.
5. Occasionally, every few years during the time that they lived together, the claimant and the deceased visited Bangladesh where they retained relations and where also they had some inherited property. But, following their separation, and in particular in the last year or so of his life, the deceased began to spend more time in Bangladesh.
6. On 18th September 2002 there was a marriage ceremony, or purported marriage ceremony, between the deceased and the second defendant, Alfia Haqq, as she is now known. In December 2002 the deceased, having returned to England following that ceremony, travelled to Bangladesh. In March 2003, when it will be remembered there was a war in progress in Iraq, there were letters from the deceased to his daughters, the terms of which have been discussed in the course of this case and which I have read. They indicated an intention to return to London, but contained no indication about how long the deceased intended to remain in London following his return.
7. In July 2003 he did in fact return to London. He lived in the accommodation which I have already mentioned. On 1st September 2003 he paid a visit to his general practitioner, who also appears to have been a close friend of his and/or his family, a Dr Doha. It is common ground that at that time the deceased intended to travel to Bangladesh. It is submitted, on behalf of the second defendant, that that return was for the purposes of settling down and residing with her permanently or indefinitely in Bangladesh.
8. It is submitted on behalf of the claimant that the evidence points to the intended visit to Bangladesh being just that, a visit. It is suggested that the evidence points to it being no more than that. It is of significance, as is pointed out by Miss Wheeler on behalf of the coroner, that when the coroner's office attended the deceased's house following his death, not only were there no passports and tickets found, but also there was no sign that the deceased had made any preparations, such as packing up his belongings and clearing the house, as might have been expected had he intended to leave this country permanently.
9. On 6th September 2003, the day before he was due to travel to Bangladesh, he was found dead by Dr Doha and another man at his home. On 9th September a post-mortem was performed and the search of the flat was made to which I have already alluded. The inquest was opened on 11th September. On 12th September the claimant requested the release of the remains. On 16th September the second defendant made a similar request. On 22nd September the coroner, the first defendant, made the decision not to release the body to either party, that being the decision which is the subject of this judicial review. That application for judicial review was made on 6th October 2003. Permission was granted on 17th October and an expedited hearing directed. On 23rd October there was a full inquest into the deceased's death and the inquest concluded on 29th October.
10. I now turn to the submissions made by the parties on the issue of the person to whom the body should be released. Miss Amin, on behalf of the claimant, submits that the deceased, on the evidence, became domiciled in England. But principally, she submits, regardless of the question of domicile, that there are strong grounds for her case to succeed. She submits that in the absence of a will (and no will has been found despite an extensive search) the first person who is entitled to letters of administration is the wife of the deceased, and that in the jurisdiction of this court the only lawful wife is the claimant.
11. She submits, in support of her judicial review claim, that there was sufficient evidence for the coroner to make a decision and that he should have made a decision. However, as I shall explain later in this judgment, the focus of the case has changed from that of a judicial review of the coroner's decision, to a request to the court to resolve, by way of declaration, the person to whom the body should be released.
12. In relation to the claim of the second defendant, by virtue of her more recent marriage in Bangladesh, Miss Amin submits as follows: that even if this court were to recognise the validity of such a marriage, and any rights that it gave to the second defendant, those rights must be weighed in the light of the law applicable locally in Bangladesh. She submits that there is a duty to treat wives equally. If there is more than one wife, the later wife should not have the better rights. As I understand it, the proposition that Bangladeshi law, and Islamic law generally, imposes a duty to treat wives equally, is not in dispute.
13. It is further emphasised by Miss Amin that there is by Islamic custom a duty to arrange for the prompt and, if possible, immediate burial and funeral of a deceased person. She submits that matters have already been allowed to go substantially beyond that time-frame and therefore, in practical terms, as well as in principle, the sooner the remains are released to the claimant the more consistent that will be with Islamic principles.
14. In relation to domicile, Miss Amin, as I have already indicated, submits that the question of domicile should be resolved in favour of this country. She points to a number of features in the case which support that submission. At the same time she seeks to distinguish the issue of who should be responsible for the burial or cremation, from the issue of succession and inheritance; whilst accepting that the one is relevant to the other, the two do not necessarily go together.
15. She relies on passages from the textbook, Jervis, a textbook for the guidance of coroners, which says that a practical solution should be sought to questions of release of the body where there are two equal claims. She points to a number of practical considerations which would support the release to her client of the body, as opposed to its possible transfer to Bangladesh.
16. She also points to a suggestion made in correspondence, on behalf of the second defendant, at an earlier stage, that the release of the body should await the determination of the winding up of the deceased's estate. She submits that that would be wholly inappropriate since it would postpone indefinitely the release of the body and be quite inconsistent with any applicable principle.
17. Mr Umezuruike has made a number of detailed submissions to the court, both in writing and orally. These submissions were not only thorough but extremely clear and competent. First of all he identifies the issues. At the forefront of his argument he places the issue of whether or not the claimant has established that the deceased had an English domicile of choice.
18. There are two material dates in that regard, the significance of which will become apparent. The first date is 18th September 2002, the date of the deceased's marriage, or purported marriage, to the second defendant, and, secondly, the date of his death on or shortly before 6th September 2003.
19. A related issue, but a separate one, is the validity of the deceased's marriage to the second defendant on 18th September 2002. Mr Umezuruike also identifies and, in my judgment, rightly identifies, the issue of the applicable law governing the intestate succession of the deceased. He poses the question of who, under the law applicable, would be entitled to the grant of English letters of administration to the deceased's estate. He submits that that issue should be decided in favour of the second defendant. If it is decided in favour of the second defendant he invites the court to consider whether or not there is some special circumstance which would displace the second defendant as being the appropriate person to whom the body should be released.
20. He would also invite the court to determine, in the event that it is found that the second defendant was not validly married to the deceased, whether, nevertheless, there was some circumstance which would permit the body to be released to her.
21. Finally he refers to the broad justice of the position and invites the court to determine on that basis, having regard to my findings on the earlier issues, which order would best accord with justice.
22. His submissions on those issues I will summarise as briefly as I fairly can. The starting point, he submits, is that the deceased's domicile of origin is Bangladesh. He reminds the court that the principles governing domicile dictate that a domicile of choice can only be acquired by proving the fact of residence in a country other than the domicile of origin with the intention of continuing to reside there indefinitely or permanently.
23. This test is twofold. There must be actual residence and that must be accompanied by a state of mind animus manendi; that is to say, the intention of making the deceased's sole or principal permanent home in England and continuing to reside there indefinitely. He points to the sorts of circumstance which have been regarded as throwing light on the question of intent. These include: change of nationality, of religion, or name; marriage to a person who is a native of the country of residence; the education, marriage or settlement in life of children; the purchase, sale or ownership of land, especially of family estates or graves; attitude to the exercise of political rights in the country of residence; the form and content of wills or other documents; the degree of social integration. None of these factors, it is accepted, are conclusive, but all take colour from their context.
24. It is submitted that there is a presumption against a change of domicile. It is submitted that I should take account of the greater difficulty of proving the acquisition of domicile of choice, when it is alleged to displace a domicile of origin. Applying all those factors to the present case, it is submitted that the claimant has failed to discharge the burden of proving a domicile of choice in this country.
25. On the second defendant's behalf, it is pointed out that notwithstanding his lengthy stay in England, his Bangladeshi nationality was not abandoned; that he spent a lot of the last year of his life in Bangladesh; that there is evidence before the court that he expressed a wish to be buried in that country. I am invited to infer that he was preparing to return to Bangladesh permanently when he died. Points are made about the professional links that were retained between the deceased and Bangladesh; for example, his professional qualification with the bar in Bangladesh and his contact with relatives there.
26. In the alternative, the submission is made that even if the deceased did acquire a domicile of choice in England, then that was changed again between July 2002 and the time of his death. It is submitted that his actions and words in that period of time evinced an intention permanently or indefinitely to reside in Bangladesh, accompanied by actual residence in that country.
27. Mr Umezuruike makes submissions about the validity of the deceased's marriage in Bangladesh to the second defendant. He relies on the expert report, filed very recently indeed, by Mr Sayyad Mohyeddeen, who is, or claims to be, an expert in Bangladeshi law, as well as being a member of the English bar.
28. It is the opinion of the expert, having reviewed all the facts of the case, that the marriage to the second defendant was valid, despite a number of irregularities affecting it. Those irregularities, conceded, are that the consent was neither sought or obtained of the claimant to this second marriage, notwithstanding that that was required under the appropriate law. Further, the fact that the permission of the chairman of the relevant state or religious authorities was not obtained, as was required under the relevant Bangladeshi law.
29. Reliance was placed on a further argument that it could be said that such consents were not required. The reason for that, it is said, is that under Islamic law the conduct of a wife, in seeking the exclusion of her husband from the matrimonial home, can lead involuntarily, as it were, to the marriage being dissolved, since the husband, following such conduct by his wife, may treat the marriage as if it were at an end. It is submitted that the claimant's actions in excluding the deceased effectively brought their marriage to an end.
30. The second defendant resists the submission that the second marriage might be void under the Matrimonial Causes Act 1973, section 11. It is not contended that the marriage would be valid if in fact the deceased were domiciled in England or Wales, but it is submitted, as I have previously stated, that the domicile was in Bangladesh and therefore that section would not apply.
31. It is further submitted that a consequence of the deceased being domiciled in Bangladesh, was that in the case of intestacy the courts of England and Wales would look first to grant letters of administration in accordance with the jurisdiction of the country of domicile. Reliance is placed on Rule 30 of the Non-Contentious Probate Rules 1987, S.I. 1987 No 2024. Mr Umezuruike points out that although that rule vests a discretion in the district judge considering the matter, it would, in this case, lean heavily towards the second defendant being entitled to be granted letters of administration, if the deceased were domiciled in Bangladesh.
32. He submits that that principle is consistent with the text of Jervis, which says that the persons entitled to a grant of administration in order of preference, should be treated as the persons entitled to determine the mode and place of disposal of the dead body (chapter 7, paragraph 5). Where no letters of administration have been granted, the grant should be made to the person entitled to administer the estate by the law of domicile. In the absence of any special circumstances suggesting the contrary, it is that person who should also be entitled to determine the mode and place of disposal of the body.
33. It is submitted that there are no such circumstances in this case. Indeed, on the question of the exercise of discretion, he points to a number of matters which would favour the second defendant. He points to the evidence of Sultana Shika, the woman who claims to be the eldest daughter of the deceased by a previous union. He points to the family ties with Bangladesh. He points to the express wish to be buried in Bangladesh. He points to the period of time during which the deceased had been living separately from the claimant and her children; namely, approximately 9 years. He points to the interests of the second defendant's unborn child in this connection: the second defendant says that she is pregnant, that the child is due to be born in January 2004, and it is submitted that it will cause unnecessary distress to the child once he or she becomes aware of the background if they cannot easily visit the grave of the father.
34. Mr Umezuruike elaborates these last matters, both in his written and oral argument, and submits on the basis of them that the broad justice of the case would be met, regardless of questions of domicile and validity of marriage, by the body being released to the second defendant.
35. On behalf of the coroner Miss Wheeler makes a number of helpful submissions. She claims on the coroner's behalf, and I accept this, that she is viewing the matter objectively and trying to assist the court, rather than starting with a predisposition to the release of the body to one party or another.
36. It has to be said, however, that having adopted this approach, Miss Wheeler's submissions coincide more closely with those made on behalf of claimant, than to those made on behalf of the second defendant. She does not, however, in making those submissions, seek to persuade the court to one course or another.
37. She submits that it is clear that the personal representatives of a deceased, rather than members of a family as such, are those who have the right to release of the body and arrangements for the funeral or burial. She cites the case of Williams v Williams [1882] 20 ChD 659, in support of that proposition, as well as the 12th Edition of Jervis on Coroners, chapter 7, paragraph 3. From the latter text she cites the following as being the position, at chapter 7, paragraph 5:

"If there is no will, then (if the deceased was married) the deceased's spouse is the person next entitled to determine these matters, as the person first entitled to a grant of administration of the deceased's estate, at least until it is clear that he or she is incapable of acting or does not intend to apply for such a grant. Subject to that, the other persons able to apply for a grant should be treated as the persons to determine mode and place of disposal."

38. She submits that the first question, therefore, would seem to be: who is the lawful wife of the deceased? She submits that the answer to that appears to depend both on the domicile of the deceased and the provisions of the relevant law, whether it be English or Bangladeshi, as to the validity of marriage, and notes that both competing claims here are framed on that basis; namely that each of the widows are the deceased's lawful widow. But she warns the court against an over-formulaic and narrow approach. She reminds the court that it is able to exercise its discretion in determining entitlement to the body on a pragmatic basis and cites the following proposition, "Where two or more persons rank equally, the court will resolve the dispute on a practical basis."
39. She illustrates this by two recent cases in which the court adopted a pragmatic approach to resolution of disputes over the disposal of the remains of a child or young person. Buchanan v Milton [1999] 2 FLR 844, decision of Mrs Justice Hale, as she then was, and Fessi v Whitmore [1999] 1 FLR 767, a decision of His Honour Judge Boggis QC, sitting as a High Court judge.
40. I have found those cases helpful and I have read the reports in both of them. The facts in each case are very different from the present, but some of the principles enunciated in those cases are helpful. In particular there is a quotation from the latter case which is cited in Miss Wheeler's written argument:

"I do not think I am being asked to give directions as to the administration of an estate. I am being asked to decide between the conflicting arguments of equally entitled parents as to the way in which Mark's ashes should be disposed of and I do that on the usual basis that this court is well used to exercising discretion in disputes between trustees and adjudicating on the proper course to follow when no agreement can be reached by the parties concerned.

"One takes all of the background into account. One takes into account the views held on both sides and comes to a conclusion which does fairness and justice to both sides."

That is a particularly helpful observation for the purposes of this case where I am positively being asked, in this judicial review application, by all the parties to the dispute, to determine it today.

41. Miss Wheeler identifies the practical issue as being the alleged attachments of the deceased to the United Kingdom on the one hand, and to Bangladesh on the other hand, and to the family or families he has had, or is alleged to have had, in each case. She points to the fact that the deceased had lived in the United Kingdom for over 30 years with four children, a wife and friends. She points to evidence of a strong family bond between the deceased and the children, as evidenced in the form of letters. Also the particular attachment that the deceased's son had to him and the distress caused to him, not only by the deceased's death, but by the thought that his remains will be removed elsewhere. She submits that the interests of those children should be given considerable weight, more weight than those of the unborn child, important though the latter may be.
42. She also draws attention to the coroner's reservations about the reliability of some of the second defendant's evidence. She points to the considerable weight of evidence supporting the domicile of the deceased in the United Kingdom. She is concerned, in looking at the evidence available, of the lack of partiality of the witness Dr Doha, who gave evidence at the inquest, in relation to the deceased's future intentions.
43. I have endeavoured, fairly, to summarise the submissions that have come from the various parties. It is common ground that this case must be concluded today and therefore it has not been possible for me to rehearse, in detail, all the relevant facts of the case. It is sufficient to say that I have read all the extensive factual material, the statements and the relevant exhibits attached to them, before coming to my conclusions on the case which are as follows.
44. I deal first with the technical question posed by the judicial review itself; namely whether the coroner's refusal to release the body to the claimant on 22nd September this year was unlawful. On that point I have no hesitation in saying that the coroner was justified in his decision at that stage not to release the body. He had very recently, and certainly within the previous two weeks, received serious and vigorous correspondence from solicitors on behalf of the complainant on one hand, and the second defendant on the other hand, seeking diametrically opposed courses. Both sets of solicitors presented the coroner with what, on the face of it, were respectable reasons for their competing claims. It would, in my judgment, have been irresponsible for the coroner to release the body at that stage and certainly it was well within his lawful power and discretion to await further information before doing so.
45. I come now to the substantial matters that I am asked to deal with. As I have said, technically this case takes the form of a challenge to the decision of the coroner. If I had confined myself to that I would simply have had to say that the claim would fail. However, other very important matters arise. All three parties, the claimant, the second defendant, and the coroner, all recognise that a swift decision is required as to the person to whom the remains should be released.
46. The delay which has already taken place is, it is agreed, offensive to Islamic belief and custom, which requires prompt burial or other disposal of the remains. Thus it is agreed that I should decide the issue today and I am urged by all parties to give a declaratory judgment for that purpose. I am comforted in complying with that request by the two decisions to which I have already referred; namely the decisions in the case of Buchanan and in the case of Fessi. In each of those cases, in, as I understand it, different divisions of the High Court, the judge was prepared to assist the parties by making a declaratory decision.
47. In discussing the matter with counsel before the hearing began, I pointed out that the present case was potentially extremely complex. There were a number of factual matters which could not be satisfactorily resolved and concluded. The reasons for that included the following: (a) oral evidence was not to be taken and could not be taken today, (b) there was evidence from Bangladesh, the reliability and provenance of which could not properly be tested without an adjournment for further evidence, (c) there was a very recently served expert's report on aspects of Bangladeshi law and Sharia law which might be open to challenge, (d) there were potentially awkward questions of domicile which might, if a conclusive decision upon them were required, take certainly more than today and probably several days to determine. Indeed, conclusive findings on that issue alone might well require adjournment for further evidence.
48. In the circumstances I discussed whether I should proceed today on the basis of the material available and subject to its limitations. I proposed that if I were to proceed I should not make any definite findings on the legal or factual issues involved, but rather base my decision on a provisional assessment of the weight of evidence on these issues. That approach would enable me to make the speedy determination sought, but it would also preserve the right of any party to reopen the issues for other purposes, if necessary; for example, for the purpose of any questions over entitlement to act as personal representative or other inheritance questions. It was agreed that I should proceed on the basis of the approach which I proposed; namely that I should make no concluded findings on issues of fact or law, but to simply make an assessment of the weight of evidence and exercise my discretion in determining to whom the body should be released.
49. I come first to the issue of domicile. It is common ground that Bangladesh was the deceased's domicile of origin. The issues seemed to me to be as follows: (a) did he acquire a domicile of choice in England? (b) if so, did a time come when he abandoned his domicile of choice and acquired, once more, a domicile in Bangladesh? (c) if the answer to (b) is yes, when did he reacquire his domicile in Bangladesh? Was it before September 2002 when he went through a marriage ceremony with the second defendant or was it after that?
50. Having considered all the evidence as carefully as I can, I think it very likely that he acquired a domicile of choice in this country. I think the weight of the evidence strongly favours that conclusion.
51. It is argued, on the second defendant's behalf, that there is no specific evidence of intent in that regard. However, there is a very strong set of facts from which an inference of that intent can be drawn. The deceased came to England, newly wed to the claimant, in 1966. They lived together in this jurisdiction for 27 years. They both became British citizens. The deceased pursued a career at work in this country which included the civil service, teaching and the bar. The first claimant and his four children continued to reside in England.
52. In my judgment there is a very strong inference to be drawn that there was a settled intention on the part of the deceased to reside permanently or indefinitely in this country. In 1993 the parties separated and in more recent times the deceased resumed more meaningful contacts with Bangladesh. But it is likely that by 1993, in my judgment, he had already acquired a domicile of choice here.
53. At the request of Mr Umezuruike I have carefully considered the case of In the Estate of Fuld, dec'd. (No 3) [1968] P 675. The facts there are very different. The deceased's connection in that case with Canada was a relatively temporary phenomenon in comparison to the deceased's connection here with England. Indeed, having read the case, it reinforces me in the view I have already formed on the weight of evidence about his acquisition of domicile of choice in England.
54. In contrast, the evidence in support of the deceased having reacquired domicile in Bangladesh, is much more equivocal and relatively weak. The deceased continued to keep a home in England, his residence was here and he had contact with his children. He did, of course, go to Bangladesh for a period and he married a young woman in that country. No doubt that those are matters to which significant weight could be given, but there is, nevertheless, no convincing evidence that he took up residence there.
55. His home in this country was quite close to the claimant's. He was there when he died. He was due to leave for Bangladesh the next day. There is evidence from the second defendant that the purpose of his leaving for Bangladesh was to settle there for good, but the indications to the coroner's officer, on visiting that premises, was that there was nothing to suggest that he was moving out or packing up any substantial part of his possessions with a view to any permanent move away from that address.
56. There are, of course, and I recognise this, indications both ways. The eldest daughter of a previous union claims that he said he wanted to settle in Bangladesh, he wanted to be buried there. There was the fact of the marriage ceremony itself to the second defendant. However, even taking into account that evidence of expressed intent, there is no convincing evidence of actual residence there, as opposed to visits, to accompany any necessary intent.
57. In summary, I make no conclusive finding on domicile, but the weight of the evidence points strongly to domicile in England and Wales. If correct that has several important consequences. First, there can be no question, if there ever was, of the subsistence of the claimant's marriage to the deceased. In English law, the law of domicile, the marriage remained undissolved. Secondly, it would also then be probable that the marriage celebrated with the second defendant would be regarded as void under English law. Thirdly, the claimant would have first entitlement to the grant of letters of administration. Thus, under the principles set out in Jervis, unless there were circumstances which justified another course, the claimant would be the person to whom the body should be released.
58. What are the circumstances one way and the other? They consist of the long years of family life in England; several further years in which the bond of affection remained between the deceased and his four grown-up children here and the contact that took place between them; letters which show that he retained a bond of affection for them; evidence that there was some continuing contact with the claimant herself, although probably in connection with the children only; evidence that the grown-up children and the son, in particular, would value, greatly, burial rights taking place in England.
59. On the other side there is a presence of the family grave in Bangladesh; there is evidence from the second defendant and the deceased's elder daughter that he expressed a wish to be buried in Bangladesh; and there is, of course, the deceased's unborn child and his or her interests.
60. However, taking those competing factors as a whole, in my judgment, the balance of factors is in favour of the body being released to the claimant in the light of the circumstances. Certainly, it does not favour a shift away from the principle of release of the remains to a person entitled to letters of administration. The broad practical approach also favours release to the claimant which could take place promptly and practically.
61. I emphasise that I have decided this matter on the basis that all the evidence is genuine, including the evidence from Bangladesh, about which serious questions have been asked today, especially by Miss Wheeler on behalf of the coroner, but also by Miss Amin on the claimant's behalf. These include the following: a search has discovered, apparently, that the second defendant's expert is not a member of the English bar, as claimed in his report.
62. Further, there are, it is submitted, apparent irregularities in certain certificates authenticating birth and marriage. They call into question the genuineness of Sultana Parveen Shika claiming to be the defendant's oldest daughter. There are the aspects of the marriage certificate of the second defendant which tend to undermine the genuineness or validity of the marriage. Since the parties have not had sufficient time these matters have not been properly investigated.
63. In connection with the expert I think it only right, in spite of the seriousness of the alleged irregularity, to assume that he is an expert on Bangladeshi law. In addition to that, as regards the Bangladeshi evidence, it would be wrong to be too harsh in assessing these matters, given that the evidence has only just appeared. Mr Umezuruike would be placed in an embarrassing situation if an unduly adverse view were taken.
64. Nevertheless it has to be said that the so-called extract from the Register of Birth, relating to Sultana Parveen, simply cannot be an extract from the original birth register, because at the time of her birth the deceased was alive. The date of birth is 17th January 1964, and yet the deceased is referred to as "the late" Mir Imadul Haqq on that certificate. On the following page, which purports to be a higher secondary certificate examination, whilst she is referred to as being the daughter of Mir Imadul Haqq on that certificate, there is a printed legend above it which says, "Father's Name Amended." It may not be invalid, but it poses serious questions.
65. There is also the fact that there is an assertion on the marriage certificate between the deceased and the second defendant that the defendant had not been previously married. That amounts, on any view, to a misrepresentation. Quite whether it is a deliberate or culpable one or some kind of misunderstanding, it is not clear. But it certainly opens the effectiveness and validity of that certificate to serious questions and rightly gives the coroner, in my judgment, cause for concern.
66. If, contrary to all the weight of the evidence, the deceased was domiciled in Bangladesh at the time of his death, it would give the second defendant a more arguable claim. I am not persuaded that the evidence under those circumstances would show that the claimant was no longer validly married to the deceased at the time of his death, whether under English law or under Bangladeshi law. So, under those circumstances, there would be two validly married wives of the deceased.
67. Under those circumstances there would still, in my judgment, have been powerful reasons, on practical grounds, for ordering the release of the body to the claimant, notwithstanding the Rules to which I have referred. However it is unnecessary for me to make a decision on that hypothesis, since my judgment is that the great weight of the evidence is that the deceased was still domiciled in this country at the time of his death.
68. The declaration which I am asked to make, therefore, is determined in this way: that it is declared that the claimant is the person entitled to the release of the deceased's body.
69. Yes, does anybody have any applications to make?
70. MISS AMIN: My Lord, that leaves the issue of costs.
71. MR JUSTICE GIBBS: Yes.
72. MISS AMIN: My Lord, I am conscious that, at least notionally, we are all publicly funded one way or another, but, my Lord, there is the question of whether or not the second defendant is or is not because we have not received a copy, despite my --
73. MR JUSTICE GIBBS: Are you publicly funded?
74. MR UMEZURUIKE: We are.
75. MR JUSTICE GIBBS: Has a certificate been filed?
76. MR UMEZURUIKE: There should be one in the bundle, I am not too sure.
77. MR JUSTICE GIBBS: But you can confirm to me, can you, that you are --
78. MR UMEZURUIKE: We are, my Lord. What I am told is that the regulations only require those instructing me to inform the other side on the issue of --
79. MR JUSTICE GIBBS: Can we leave that for the moment, can you confirm to me that you are in receipt of public funds?
80. MR UMEZURUIKE: I have seen the certificate.
81. MR JUSTICE GIBBS: I want you to give an undertaking that a certificate is filed, if it has not already been filed. Are you prepared to give that undertaking?
82. MR UMEZURUIKE: I am.
83. MR JUSTICE GIBBS: Thank you. That will be, to give you plenty of time, within 7 days.
84. MR UMEZURUIKE: I am obliged.
85. MR JUSTICE GIBBS: That undertaking having been accepted, are there any further applications in relation to costs from anybody?
86. MR UMEZURUIKE: My Lord, just a detailed assessment of the second defendant's publicly funded costs.
87. MR JUSTICE GIBBS: Yes, yes.
88. MISS AMIN: The same with mine, because I am publicly funded, so if I could have detailed assessment for the claimant's costs?
89. MR JUSTICE GIBBS: Yes.
90. MR UMEZURUIKE: My Lord, could I make an application, just for the record, if your Lordship could indicate whether or not permission will be granted to the second defendant to appeal?
91. MR JUSTICE GIBBS: I am sorry?
92. MR UMEZURUIKE: Whether your Lordship would indicate whether permission would be granted to the second defendant to appeal?
93. MR JUSTICE GIBBS: No. I refuse leave to appeal because I do not consider that there is an arguable case, this being a matter of discretion, and also because of the acknowledged need for a speedy resolution of this matter.
94. MR UMEZURUIKE: I am very grateful.
95. MR JUSTICE GIBBS: Thank you very much. I am grateful to you for the arguments you have put forward.