Ronald Philip Johnson v No Named Defendant
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 06 February 2020 |
| Neutral Citation | [2020] EWHC 207 (Ch) |
| Court | Chancery Division |
| Date | 06 February 2020 |
| Docket Number | Case No: PT-2019-BRS-000113 |
[2020] EWHC 207 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2019-BRS-000113
Matthew Wales (instructed by Walsh & Co) for the Claimant
No other persons were present or represented
Hearing date: 5 February 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.
Introduction
On 5 February 2020 I heard and determined a claim under the Presumption of Death Act 2013 by Ronald Philip Johnson for a declaration that his brother Norman Reginald Johnson (“Norman”) was presumed to have died. In so doing, I exercised the court's management powers under this CPR rule 3.1(2)(b), (m), to accelerate the final or disposal hearing of this matter on the basis that all the formalities had been complied with, and that there was no one who having been given notice of the proceedings wished to intervene or provide any further evidence.
At the conclusion of the argument I gave an oral judgment, explaining why I would make the declaration sought. The reason for providing this short written judgment in addition is simply to highlight the difficulties with the provisions of section 2 of the 2013 Act previously pointed out by Chief Master Marsh in the case of CD, re AB [2019] EWHC 2785 (Ch). Accordingly, in this judgment I do not deal with all the facts of this case, but only those which are relevant to this point.
Facts
Norman was a retired manager, aged 70 years at the time of his disappearance, who lived with his civil partner Colin Sweeney (“Colin”) in Bolton. He was suffering from early-stage dementia, for which he was receiving medication, but was still able to drive his car. He was last seen for certain at a dance class in Hindley, about 10 miles from home, on the evening of 29 March 2011, but he never came home. He spoke later to his partner by mobile telephone to say that he thought his car had been stolen, although his partner considered that he had simply forgotten where he had parked it, and indeed it was found subsequently parked about 500m from the dance class venue. He said he was walking to Hindley. Given Norman's age and medical condition, Colin immediately reported this to the police, and searches were made for him, not only by the police, but also in subsequent days by members of the public.
The only other sighting of Norman was at about 8:50 PM on 30 March 2011 when a passenger on an InterCity train from London Euston to Birmingham showed a ticket inspector Norman's driving licence, because he was unable to pay a penalty fare on the train. The railway authority subsequently wrote to Norman at his home address to claim this fare. The passenger left the train at Birmingham in order, apparently to catch a train to Bolton, but if it was Norman he never arrived. Norman's disappearance was covered in local newspapers and was also registered with the UK Missing Persons Bureau. His disappearance has never been matched to any body subsequently found, and no one (including the claimant and Colin) who might have been expected to hear from him has ever done so.
Because of Norman's illness, he did not have a credit card, and Colin managed his finances, operating his (Norman's) bank account and providing him with necessary cash. When he disappeared, Norman did not have his medication, nor did he have any clothes or other personal effects than those he had with him at the time. The only non-automated operations on Norman's bank account after his disappearance were those conducted by Colin himself. His pensions continued to be paid into his account.
Norman had made a will in 1996, but that would have been revoked by the civil partnership entered into in 2008: see the Wills Act 1837, section 18B(1). So at the time of his disappearance he would have been intestate. So far as is known, he had no children. The property in which Norman and Colin lived together in Bolton was jointly owned by them. In 2016, presumably on advice, Colin severed the beneficial joint tenancy in that property. Sadly, in December 2017 Colin died. He left a will appointing a lady called Dora Vanderpuye as his executrix. (I add that no manual operation on Norman's bank account is recorded after Colin's death.)
In the circumstances, if Norman is to be presumed to have died, it is critical to establish the date at which his death is presumed to have taken place. If it is prior to the severance of the joint tenancy in their house, then Colin (and now his estate) would be entitled by survivorship to the whole of the beneficial interest in that property. If it is after the severance of the joint tenancy but before Colin's death, then Colin as surviving civil partner (and now Colin's estate) would be entitled to Norman's estate on intestacy. If it is after the death of Colin then the claimant and a third brother, Brian, would be entitled on intestacy.
Law
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 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)...
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Thomas Banks Hamilton v Secretary of State for Business, Energy and Industrial Strategy
...to enact a law that might be regarded as containing rules that do not accord with common sense”. The example cited is Re Ronald Johnson [2020] EWHC 207. Section 2(3) of the Presumption of Death Act 2013 provides that where the court (a) is satisfied that the missing person has died but (b) ......