Peter Don Rivers Greathead v Edward Don Rivers Greathead
| Jurisdiction | England & Wales |
| Judge | HHJ Paul Matthews |
| Judgment Date | 19 May 2017 |
| Neutral Citation | [2017] EWHC 1154 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: D30BS837,D30BS837 |
| Date | 19 May 2017 |
[2017] EWHC 1154 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: D30BS837
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
The Claimant appeared in person
Hearing dates: 18 May 2017
Introduction
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.
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.
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.
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
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."
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".
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
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."
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.
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.
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
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...
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