England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

		Bristol Civil Justice Centre 2 Redcliff Street, Bristol, BS1 6GR
		19/05/2017

HHJ Paul Matthews :

Introduction

1. Yesterday I made a declaration of presumed death in respect of the claimant's son Edward, under the Presumption of Death Act 2013. Edward disappeared on 17 November 2005, in Sidmouth, Devon, and has not been heard of since. I will come back to the factual circumstances and the evidence later on. After making the declaration, I said I would give my reasons in writing. These are those reasons.
2. The claim form was issued under CPR Part 8 on 13 March 2017, and was accompanied by the information required under CPR rule 57.19 (2), and Practice Direction 57B paragraph 1.1. It is also supported by the personal statement of the claimant, and other evidence consisting of various responses to questions raised with relevant agencies and potential witnesses, which are all treated as incorporated into the particulars contained in the claim form.
3. The claim form was issued in the District Registry of the Queen's Bench Division of the High Court in Exeter. However, CPR rule 57.18 requires that a claim for a declaration of presumption of death should be brought either in the Chancery Division or in the Family Division of the High Court. Accordingly, the claim was transferred from the Queen's Bench Division (Exeter District Registry) to the Chancery Division (Bristol District Registry) on 20 March 2017. In compliance with Practice Direction 57B, paragraph 1.4, a directions hearing was listed on 4 May 2017, being more than 28 but less than 56 days after issue. This requirement is to allow time for those given notice of the claim or responding to the advertisement of the claim to file a notice of intention to intervene, or to apply for permission to do so.
4. In accordance with CPR rule 57.20 (1), the claim form was served on Edward's mother, Monique Greathead, his sister, Tanya Hobley, and his brother Nicholas Greathead. Each of them filed an acknowledgement of service, indicating no intention to defend the claim. (The form is inapt, since the opportunity for the person served is to intervene in, rather than defend, the claim.) The three forms were received by the court on 28 March 2017. The claim form was also served on the Royal London Mutual Insurance Society Ltd. The Society did not file an acknowledgement of service, but wrote a letter dated the 24 March 2017 indicating that it had no wish to take part in the proceedings.

Parties

5. In ordinary litigation, a claimant must decide whom to name as a defendant. As a general rule, the claimant may sue whom he or she wishes, and will generally name as a defendant a person whom the claimant wishes to be bound by the decision. A claim for a declaration of presumed death under the 2013 Act is however different, partly because it operates as against the whole world, and not just between the parties. Section 9(1) of the Act provides as follows:

"A person who makes an application under this Act for a declaration or a variation order must send to the persons specified by rules of court –

(a) notice of the application, and

(b) any other information specified by rules of court."

CPR rule 57.20 provides in part that

"(1) Where the claim is for a declaration of presumed death, the claimant must give notice of the claim by serving a copy of it on the following persons (where not the claimant) –

(a) the spouse or civil partner of the missing person;

(b) any parent of the missing person;

(c) any child of the missing person;

(d) any sibling of the missing person;

(e) if there are no persons within subparagraphs (a)-(d), the nearest relative of the missing person known to the claimant; and

(f) any other person (including in particular any insurance company) appearing to the claimant to have an interest in the claim."

6. There is no reference, whether in the statute or in the rules, to joining any person as a defendant to the claim. Moreover, the normal Part 8 procedure is modified by CPR rule 57.19 in a number of important ways. One of them is a modification of CPR rule 8.2A. Instead of the phrase "without naming a defendant", which appears in that rule, the modification for the purposes of a claim for a declaration of presumed death is to substitute the words "without serving notice on any person".
7. So this is a procedure without any defendants as such. Instead there is a class of potential intervenors, who must be given notice in case they wish to take part in the proceedings. In this respect, it is rather like a coroner's inquest. In fact, the claimant in the present case has named his missing son Edward as the defendant. This is neither necessary nor appropriate. The critical matter is that the claimant should give the relevant notice to the required persons. This he has done. The sensible course for the future is for the claimant not to name any defendant, and the case to be known simply by the name of the claimant and the name of the missing person, such as "[Name], claimant, in the matter of [name of missing person]".

Advertisement

8. It is also necessary for the claimant to advertise the claim, in case there are others who have not been given notice, but nonetheless wish to take part. Section 9 (2) of the Act provides that:

"An application under this Act for a declaration or a variation order must be advertised in accordance with rules of court."

And CPR 57.21 provides that:

"(1) The claimant (whether the claim is for a declaration of presumed death or for a variation order) must, within 7 days of issue of the claim, ensure that notice of the claim is published –

(a) in a form which meets the requirements set out in Practice Direction 57B; and

(b) in at least one newspaper circulating in the vicinity of the last known address of the missing person.

(2) The claimant must, at least 5 days before the hearing, file a copy of the page of the newspaper bearing the advertisement of notice of the claim required by paragraph (1) and the date on which it was published."

9. In the present case the claimant had by 20 March 2017 arranged for the publication of the advertisement of the claim, in a form which complies with the requirements in Practice Direction 57B. But it did not appear in the newspaper (the Midweek Herald) until 22 March 2017. In my judgment, the reference to "ensure that notice of the claim is published" is to the publication rather than to the arranging for the publication. That means that the claimant was actually 2 days out of time.
10. Although section 9(2) requires advertisement, as a necessary step, and it therefore cannot be dispensed with under the court's management powers, there is nothing in the Act to prevent the exercise of the court's powers under CPR rule 3.1(2)(a) to extend time for the advertisement to be published. If the advertisement is published within the time as so extended under the rules, the application will have been advertised "in accordance with rules of court". In the present case there is no reason not to extend time for the further 2 days before the advertisement appeared. I therefore do so.
11. The claimant filed a copy of the page of the newspaper bearing the advertisement of the claim on 31 March 2017, which is more than 5 days before the hearing of this claim, and he therefore complied with rule 57.21 (2).

Jurisdiction

12. Section 1 of the 2013 Act deals with the jurisdiction of the court to make a declaration of presumed death. So far as material, it provides:

"(1) This section applies where a person who is missing –

(a) is thought to have died,

(b) has not been known to be alive a period of at least 7 years.

(2) Any person may apply to the High Court for a declaration that the missing person is presumed to be dead.

(3) The court has jurisdiction to hear and determine an application under this section only if –

(a) the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive,

(b) the missing person had been habitually resident in England and Wales throughout the period of one year ending with that day [ … ]

(5) The court must refuse to hear an application under this section if

(a) the application is made by someone other than the missing person's spouse, civil partner, parent, child or sibling, and

(b) the court considers that the applicant does not have a sufficient interest in the determination of the application."

13. There is nothing in the Act to indicate that the concept of domicile is used in any but its usual common-law sense. The evidence shows that the claimant and his family came from South Africa to live in England as a family in 1980. Edward was born in South Africa and was 15 years old when he arrived in England. The claimant told me that although he was actually born in England, his father was born in South Africa (as were earlier generations). It is therefore likely that Edward had a domicile of dependency, first in South Africa and from 1980 in England. The evidence is that he (and the rest of his family) has lived since then in England, although once grown-up he did visit South Africa with a view to possibly moving back, but in the event remained in England. I consider it likely that he has not lost the English domicile which he acquired in 1980.
14. However, in any event, the evidence satisfies me that Edward had been habitually resident in England throughout the period of one year ending on the day on which he was last known to be alive. Accordingly, without needing to decide the question of domicile definitively, I am satisfied that the court has jurisdiction to hear and determine this application. The claimant is the father of the missing person, and therefore entitled to make the application without the need for the court to consider whether he has a sufficient interest.

Facts

On the written evidence submitted, I find the following facts. When Edward was first in England, he had considerable difficulty in adapting to a different way of life. But he finished formal education, and entered employment. He was fully employed, and had an active social life. But in late 1998 he suffered panic attacks when at work, and seemed to lose confidence in himself. He was prescribed medication, but these symptoms developed into depression, and in October 1999 he resigned from his job. For most of the rest of the time he was known to be alive he lived in a flat adjoining the claimant's house, in Killington. For a few months in 2004 he went to live with a fellow patient from Wonford Hospital, but it did not work out, and he returned to the flat.

15. Edward's mental condition was monitored by a visiting mental health nurse, and he regularly saw the district NHS psychiatrist in Axminster, who prescribed medication for his depression. But on four occasions he had to be admitted to hospital. He was upset by the suicides of five patients he knew. He sometimes spoke of suicide as being the only solution to his problems. And he contemplated, if not attempted, suicide on at least five occasions that the claimant is aware of. One involved alcohol and paracetamol, another involved a length of hosepipe and his car, the third involved an electric fire and a bath full of water, the fourth involved rope and a tree, and the fifth involved a jump from a great height. Edward also wrote two notes at different times in the past (not at the time of his disappearance) which could be fairly described as suicide notes. The claimant points out that there have also been cases of clinical depression in his family. His own father, a successful doctor, committed suicide at the age of 45.
16. In the summer of 2005 the claimant and his wife decided to spend that summer renovating their holiday home in France, and tried to persuade Edward to accompany them. He declined the offer. His psychiatrist and mental health support nurse considered that he should move to NHS sheltered accommodation, with qualified staff in attendance. Unfortunately there was no suitable space available at the time. The local Mental Health Crisis Team placed him at Blackmore House in Sidmouth. Over the summer, the claimant and his wife kept in touch regularly by telephone from France, and his sister made regular visits and calls to him. When she visited him 2 weeks before he went missing she found him in a very depressed state. His support worker saw him 2 days before he went missing, and later said he was in a very low frame of mind.
17. On 17 November 2005, he was seen by a fellow resident at 2 pm, but thereafter disappeared, and has not been seen since. He left no note or letter, or other indication of his intentions. An extensive two-day search was carried out by the police and coastguard, with no success. The claimant and his wife immediately returned to England, and together with family, friends and others, they searched the coast path between Lyme Regis and Exmouth, and most of the woodland within five miles of the coast. There were severe frosts on the nights of 17 and 18 November followed by a 6 inch snowfall which lay for several days. There was a poster campaign and extensive media coverage.
18. When his room at Blackmore house was checked, it was apparent that he had taken no clothes with him. He had also left behind his wallet, his passport, his cheque-book, bank cards, his mobile phone and his spectacles. He appears to have been wearing out of date contact lenses. At that time he had no access to his car. Since then his passport has expired. According to enquiries with the South African authorities, no attempt has been made to renew it. According to enquiries with his bank, there has been no attempt to withdraw money from his account since before his death. Later enquiries suggested that, despite assurances from the staff at the home where he was living, he may not have been taking his medication during the time that he lived in Sidmouth. At the time of his disappearance, Edward was waiting for surgery on his knee, which was very swollen. It meant that he walked with a limp.
19. It is now more than 11 years since Edward disappeared. He has not been seen since, and neither has his body been found. The claimant and his family initially feared that he might have taken his own life, although they hoped that that was not the case, and that he would be quickly found. But over the years hopes have faded, and now they accept that he must be dead. The claimant has asked the court to make an appropriate declaration, and the rest of the family agree.

The declaration

20. Section 2 of the 2013 Act provides as follows:

"(1) On an application under section 1, the court must make the declaration if it is satisfied that the missing person –

(a) has died, or

(b) has not been known to be alive for a period of at least 7 years.

(2) It must include in the declaration of finding as to the date and time of the missing person's death

(3) Where the court –

(a) is satisfied that the missing person has died, but

(b) is uncertain at which moment during a period the missing person died, the finding must be that the missing person is presumed to have died the end of that period

(4) Where the court –

(a) is satisfied that the missing person has not been known to be alive for a period of at least 7 years, but

(b) is not satisfied that the missing person has died,

the finding must be that the missing person is presumed to have died at the end of the period of 7 years beginning with the day after the day on which he or she was last known to be alive."

21. There is nothing in the Act to alter the general rule that the standard of proof in civil cases is the "balance of probabilities". That simply means that a fact is proved if the court is satisfied that it is more likely to be true than not true. It is clear on this evidence that Edward has not been known to be alive for a period of at least 7 years. But the question is whether the court can be satisfied on this evidence that (on the balance of probabilities) he has in fact died. In some cases, this approach will not be appropriate, and the court will proceed under section 2(1)(b), as the safer course: see eg Re Bingham [2016] EWHC 226 (Ch), [10], [14]; A v H [2016] EWHC 762 (Fam), [17].
22. But in my judgment, the court can be so satisfied in the present case. Edward was suffering from a clinical mental illness. He was not able to look after himself properly. He had suffered from suicidal ideation in the past. He was in a very low mood. He may not have been taking any medication. He disappeared without warm clothes, access to money, passport, proper spectacles and mobile phone, and so far as is known had nowhere else to go. There were severe frosts, and heavy snow shortly afterwards. With his sore knee and limp he would not have been able to get far on foot. He has not been seen or heard of since 2005, despite extensive searches and the lapse of time since then. His money is untouched. If he had simply wandered about, then collapsed and died from exposure, his body would most probably have been found by now.
23. All of this points to some action on the part of Edward, whether deliberate or accidental, which has resulted both in his death and in the non-finding of his body. The obvious possibility is that he went into a local river and his body has been swept out to sea, but of course there are others. Moreover, given the lack of warm clothing, money for food, and shelter, and given his swollen knee, coupled with the failure to find him in the days immediately after his disappearance, it is more likely than not that he died soon after his disappearance, rather than after a period of days or weeks. I should say that I do not consider the absence of a note or letter as significant. My experience over many years as a coroner has shown that in many cases proved (on the higher, criminal standard) to be cases of suicide, no note or letter is left.
24. In my judgment, it is right that the court should make a declaration that Edward is presumed to have died on the day that he disappeared. The court is required to state not only the day but also the time of the presumed death. I will record the time as midnight on 17 November 2005, because it is the end of the period during which I consider on the evidence it is more likely than not that Edward died, namely, the day on which he disappeared.
25. Finally, I record my thanks to the claimant, a non-lawyer, for the clear, concise and measured way in which he presented the application. It cannot be easy for any parent, hoping against hope that a long lost child will one day be found alive and safe, to ask the court in effect to snuff out that hope and make a declaration of presumed death. I extend my sympathy to the claimant and the rest of his family on their loss, and hope that the making of this declaration will assist them in moving on with their lives..