CD
| Jurisdiction | England & Wales |
| Judge | Chief Master Marsh |
| Judgment Date | 29 October 2019 |
| Neutral Citation | [2019] EWHC 2785 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2019-000689 |
| Date | 29 October 2019 |
[2019] EWHC 2785 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST
Rolls Building,
Fetter Lane,
London EC4A 1NL
Chief Master Marsh
Case No: PT-2019-000689
In the Matter of an Application for a Declaration of the Presumed Death of ‘AB’
Michael Furness QC (instructed by Hogan Lovells International LLP) for the Claimant
Hearing date: 18 October 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 18 October 2019, I heard a claim made under the Presumption of Death Act 2013 (“the Act”) and granted a declaration that I was satisfied AB has died and that for the purposes of section 2(2) and 2(3) of the Act AB is presumed to have died at 11.30 on 18 October 2019. In the course of the hearing I received helpful submissions from Mr Furness QC about the workings of the Act as they apply to the tragic circumstances of this case. One particular issue warrants consideration in a judgment.
The background to this claim has already caused immeasurable distress to the claimant “CD”. Although the hearing took place in open court, I directed that my judgment should be anonymised in order to avoid further publicity that might be caused solely due to the need to publish a judgment dealing with the workings of the Act. I also directed that access to the documents filed in connection with the application can only be obtained by a third party with the permission of the court on making an application on notice to CD.
Background
AB was a British citizen. At the age of 16 he joined the armed services until he was discharged with an exemplary conduct certificate in 1993. He married CD in 1975. From 1993 onwards, AB and CD lived in the north-east of England. They were both domiciled in England and Wales. BC was a midwife in the NHS until she retired in 2007. They lived and worked in a number of countries between 2003 and 2008 when they returned to live in the north-east of England.
In May 2009 both AB and CD travelled to the Yemen to work with an NGO providing healthcare services. On Friday 12 June 2009 AB was taken hostage by unknown persons. The circumstances in which this occurred, and the aftermath, are dealt with in witness statements from CD, a friend of CD's and Julia Longbottom the Director of Consular Services of the Foreign and Commonwealth Office (FCO).
There is limited evidence about what may have happened to AB after his abduction. However, by June 2010 the FCO had assessed that AB was believed to be dead although his body had not been found. This view was repeated by Tobias Ellwood, the FCO Minister, in 2015.
Ms Longbottom has no first-hand knowledge of the facts; and she does not provide any description of the sources of information relied on by the FCO or the machinery for gathering information. The statement asserts, and I accept, that the primary sources of information, and the machinery for gathering information, are confidential and cannot be disclosed on the grounds of national security. Although the reasons for the presentation of the evidence provided on behalf of the FCO in this form are understandable, the weight that can be given to evidence that amounts to mere assertion by a person who has no knowledge of the primary facts, and who is unable to refer to the sources of her information, is inevitably limited.
The court's powers under the Act to grant a declaration of presumed death derive from section 1. The effect of section 1(1) and 1(2) is that an application can be made to the court for a declaration that a missing person is presumed to be dead where that person is either (a) thought to have died or (b) has not been known to be alive for a period of at least 7 years. It is clear that an application may be made on the first ground without the elapse of a minimum period following the person having gone missing. There may be cases in which the evidence points convincingly to the missing person having died, although no body has been found, within a short period of having gone missing. In Greathead v Greathead [2017] EWHC 1154 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) was able to conclude that the missing person had died on the same day he went missing. The application was not in fact made until over 11 years after that date due in part at least to the Act only coming into force in 2014. Leaving that point aside, it would have been possible for the application to have been made much sooner albeit that the missing person's family may often be reluctant to make the application while a glimmer of hope about the missing person exists.
The provisions of section 2(2) of the Act add a layer of complication that can create difficulties for the court. The section set out in full provides:
“2 Making declaration
(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 a 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 at 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 on which he or she was last known to be alive.”
It is clear the burden of proof under section 2(1) is on the balance of probabilities (see Greathead [21]). The cogency of the evidence that will be required under section 2(1)(a) (the missing person has died) is likely to be greater than under section 2(1)(b) (the person has not known to be alive for a period of at least 7 years). The test under the former is a positive one whereas under the latter is to establish the absence of knowledge of the person being alive.
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