Presumption of Death in UK Law

If the court is satisfied that the missing person has died and the date of death is clear (as in Greathead) it will not be difficult to fix a time of death. The position is less straightforward where there is sufficient evidence to support a finding that the missing person has died but little or no basis for determining when it occurred. The Act has fixed on a period of 7 years as the minimum period to enable a declaration to be made where the missing person has not been known to be alive.

Section 2(3) applies because the court is satisfied that the missing person has died but does not know the date and time of death. The way it is put in the Act is that the court is uncertain at which moment “during a period” the missing person died. However, the Act gives no clue about how “the period” may be established.

The evidence here does not provide any clear indication about when AB died. I do not think it is right to accept the assessment by the FCO that AB had died by June 2010 as being sufficiently convincing, whether taken on its own, or with the other evidence, to provide a period that ends earlier than the date of the hearing. And I can see no basis for the court fixing an earlier date taking that evidence with the passage of time.

In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction.

In its narrow and strict sense, the 11 jurisdiction" of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue, or (2) to the persons between whom the issue is joined, or (3) to the kind of relief sought, or any combination of these factors.

Within any Livesey v Jenkins evaluation, as Ormrod LJ in Robinson v Robinson makes plain, 'the power to set aside arises when there has been fraud, mistake, or material non-disclosure as to the facts at the time the order was made'. The task of the court therefore is to determine whether there has been material non-disclosure. There will usually be, again as Ormrod LJ spells out, 'issues of fact to be determined before the power to set aside can be exercised'.