Kheira Ganoun v Khyati Joshi
| Jurisdiction | England & Wales |
| Judge | Robin VOS |
| Judgment Date | 21 October 2020 |
| Neutral Citation | [2020] EWHC 2743 (Ch) |
| Court | Chancery Division |
| Date | 21 October 2020 |
| Docket Number | Claim No: PT-2020-000763 |
[2020] EWHC 2743 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
BUSINESS LIST
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Robin VOS
(SITTING AS A JUDGE OF THE CHANCERY DIVISION)
Claim No: PT-2020-000763
Nick Armstrong (instructed by Nicholls & Nicholls) appeared for the Applicant
John Bryant (instructed by Joshi Advocates Ltd) appeared for the First Respondent
Hearing date: 9 October 2020
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.
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be 21 October 2020 at 10.30 am.
DEPUTY JUDGE
Introduction
This is a sad case which relates to the disposal of the remains of a man who died on 15 September 2020 as a result of a road traffic accident on 10 September 2020. There is a disagreement as to the name by which he should be known and his date of birth. I will refer to this in more detail later on. For the time being, I will refer to him as the deceased but mean no disrespect in doing so.
The deceased was born in Algeria. However, he lived in England for the last 15 years of his life. His parents and his three siblings all still live in Algeria.
The applicant, Mrs Ganoun is the deceased's mother. The first respondent, Ms Joshi is the deceased's widow. The Barts NHS Trust is the second respondent as, following the deceased's death, they had physical possession of his body. Westminster Coroner is named as an interested party as a result of the concerns relating to the deceased's identity. Neither the second respondent nor Westminster Coroner have played any part in these proceedings and do not intend to do so.
Mrs Ganoun's wish and, she says, her son's wish is that he should be buried in Algeria next to his grandmother, to whom he was very close. Having become aware that Ms Joshi was planning to arrange a funeral in the UK, and in the absence of any agreement to delay matters, Mrs Ganoun made an urgent application to the court with notice to the respondents on 30 September 2020.
The application sought an order that Mrs Ganoun should be appointed as administrator of her son's estate (in order to give her the right to make the funeral arrangements) or, alternatively, requested the court exercise its inherent jurisdiction to make directions about the disposal of her son's body. Mrs Ganoun also sought an injunction preventing Ms Joshi from taking any steps to dispose of the deceased's body pending the outcome of the proceedings.
The application was however too late as Ms Joshi had arranged for her late husband to be buried in a Muslim cemetery at a private ceremony conducted by the Imam for Barts NHS Trust, Mr Faruq Siddiqi on the morning of 30 September 2020.
This fact was made known to Mr Justice Miles who heard Mrs Ganoun's application on 1 October 2020 with the result that he made directions for a full hearing of the application.
Mrs Ganoun intends to apply to the Secretary of State for permission to exhume her son's body in accordance with Section 25 Burial Act 1857. Her plan would then be to repatriate the body to Algeria and for her son to be buried there. She therefore now wishes to apply for the following relief:-
(i) Mrs Ganoun still applies to be appointed administrator of her son's estate in accordance with Section 116 Senior Courts Act 1981;
(ii) Mrs Ganoun seeks a declaration that her son has not been buried “decently”;
(iii) A declaration is also sought by Mrs Ganoun as to her son's true identity;
The main purpose of the relief sought is to support the application which she intends to make to the Secretary of State for her son's body to be exhumed.
The court's power to make declarations
Mr Armstrong, on behalf of Mrs Ganoun submitted that the court has power to make the declarations which she seeks as part of its inherent jurisdiction in relation to the administration of estates. There is no doubt that the court does have an inherent jurisdiction in relation to estates. That much was confirmed by the Chancellor, Sir Geoffrey Vos in Oldham Metropolitan Borough Council v Makin [2017] EWHC 2543 (Ch) [at 80], one of the authorities to which Mr Armstrong referred in relation to the disposal of bodies.
Mr Bryant, representing Ms Joshi however argues that any such jurisdiction is forward-looking. Whilst it might be exercised for example to decide to whom a body should be released or to give directions as to the way in which a body should be disposed of, it should not be exercised in this situation to express a view on the way in which a body has been disposed of where this has already happened.
It is of course clear from CPR Rule 40.20 that the court has power to make a declaration, whether or not any other remedy is claimed, although the underlying basis for making a declaration is derived from Section 19 Senior Courts Act 1981. Whether or not the court should make a declaration is an exercise of the court's discretion.
Although no submissions were made on the point, the principles which the court should apply are not controversial. The court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration (see for example the decision of Neuberger J (as he then was) in Financial Services Authority v Rourke (t/a JE Rourke and Co) [2001] EWHC 704 (Ch)).
Care needs to be taken in making declarations where there has not been a full trial given the possibility of adverse repercussions for third parties. However, a declaration may be made, even in such circumstances, (see Hayim v Couch [2009] EWHC 1040 (Ch) [at 17]).
Bearing these principles in mind, I am not satisfied that it would be right for the court to make a declaration in relation to the question as to whether the deceased's burial was “decent”. There are many ways of looking at what might or might not be decent. It is not part of any established legal test; instead, it is simply a factor which the court might take into account in determining who should have the right to dispose of a body (see Oldham MBC v Makin [at 74–75]).
In addition, the only purpose of the declaration would be to strengthen any application which Mrs Ganoun might wish to make to the Secretary of State for her son's body to be exhumed. As Mr Armstrong explained, the Secretary of State will be required to take into account all the relevant circumstances in coming to a decision. This may well include the circumstances surrounding the burial. It would be wrong for the court to pre-empt or influence the Secretary of State's decision by making a declaration as to whether, in the court's view, the circumstances were such that the burial was or was not “decent”. This is something which should be left to the Secretary of State to determine, should it be relevant.
The position in relation to the deceased's identity is however different. Mrs Ganoun objects to her son being buried under what she considers to be the wrong name. Mr Armstrong submits that it is improper for this to happen. However he also referred to a more practical issue which is that it is likely to be difficult for Mrs Ganoun and other members of her family in Algeria to obtain a visa to visit the UK and see her son's grave if the name under which he is buried does not correspond with the name of the person who was her son. Having a court declaration confirming that the deceased was known by more than one name would no doubt assist in obtaining such a visa.
There is therefore a purpose in making such a declaration subject to the court being satisfied of the relevant facts, that justice requires a declaration to be made and that there is no material risk of adversely affecting third parties.
The deceased's identity
Mrs Ganoun says that the deceased was born Lamine Ouabri on 27 October 1983. She has produced various official documents from Algeria which verify this, including an ID card, a birth certificate and an official family record issued by the Algerian authorities a few days before the hearing.
Mrs Ganoun's evidence is that her son left Algeria in 2003 to travel to France. She believes that he arrived in the UK in 2004 although Ms Joshi's evidence is that he arrived in the UK in 2005.
It is clear from the evidence provided by Ms Joshi that, on arrival in the UK, the deceased gave his name to the authorities as Omar Djabali and his date of birth as 27 October 1989. There is speculation that this was for immigration reasons as it might be more likely that he would be allowed to stay in the UK if, on his arrival, he was a minor.
Whatever the reason, it is apparent from the evidence provided by Ms Joshi as well as the evidence of the police officer who contacted Ms Joshi on the night of the accident that, as far as the UK is concerned, he has always been known as Omar Djabali with the date of birth of 27 October 1989.
Ms Joshi is not clear in her evidence whether she accepts that Mrs Ganoun is the deceased's mother. She does however accept that Mrs Ganoun, her husband and her other children are members of her deceased husband's family. She also accepts that the family in Algeria called her husband by a name other than Omar although she says that they called him “Amin” rather than “Lamine”. She does not however accept that her husband was born in 1983 rather than 1989 and suggests that the official...
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Adekemi Adewunmi Osawese Otitoju v Benedicta Ngozi Onwordi
...is that the body be disposed of with all proper respect and decency and, if possible, without further delay.” In Ganoun v Joshi [2020] EWHC 2743 (Ch), Robin Vos, also sitting as a deputy judge, expressly cited this comment at [60]. I also echo these 15 I turn to consider the applicable law......
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Burial Disputes
...v Gardner [2008] EWHC B3 (Ch) and Scotch v Birching (2008) (unreported) referred to in para 10.4.2). In Ganoun v Joshi and Another [2020] EWHC 2743 (Ch), the application made by the mother of the deceased under section 116 of the Senior Courts Act 1981 for the deceased’s body to be exhumed ......
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Table of Cases
...234 (Jun) 97–98 Gallorotti v Sebastianelli [2012] EWCA Civ 865, 15 ITELR 277, [2013] 1 FCR 210, [2012] 2 P&CR D47 179 Ganoun v Joshi [2020] EWHC 2743 (Ch), [2020] 4 WLR 150 152 Garnett-Botfield v Garnett-Botfield [1901] P 335, 71 LJP 1, 85 LT 641, PD&A 65 Gaskin v Chorus Law Ltd [2019] EWHC......