Ruth Helen Irish v No Defendant
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 28 February 2020 |
| Neutral Citation | [2020] EWHC 456 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2019-BRS-000060 |
In the Matter of Leslie Roger Irish
And in the Matter of the Presumption of Death Act 2013
[2020] EWHC 456 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2019-BRS-000060
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
Gilbert Stephens LLP for the Claimants
Application on paper
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
Last autumn, in the case of Re Leslie Roger Irish [2019] EWHC 2508 (Ch), I made a declaration of presumption of death, dated 23 September 2019, under the Presumption of Death Act 2013. This is my judgment on an application in the same proceedings, by application notice in Form N244 dated 24 February 2020, to amend an entry in the Schedule of Prescribed Information attached to my order. I emphasise at the outset that this application for amendment does not in any way affect the declaration of presumption of death itself, or for that matter the presumed date or place of death. All that is untouched. It concerns only the date of birth of the missing person, which information is required to be supplied in the claim form (see CPR PD 57B, para 1.1(2)(d)), and then is reproduced in an annex to the order of the court (which is prescribed in Form CH42).
The claim form in these proceedings, originally issued on 29 July 2019, gave details of the claim, including (as required by PD 57B, para 1.1(2)(d)) the statement that the missing person had been born on 17 July 1939. The details of the claim were verified by a statement of truth by the claimants' solicitor on behalf of the claimants (the missing person's children). By virtue of CPR rule 8.5(7), matters set out in a claim form may be relied on as evidence in a claim under CPR Part 8, such as a claim under the 2013 Act is (see CPR rule 57.19(1)).
Having now read a witness statement dated 24 February 2020 made by Sukhjit Kaur Mills, the claimants' solicitor, who has exhibited a copy of the birth certificate of the missing person, I am satisfied that the date of birth was incorrectly stated in the claim form. It was not 17 July 1939, but 17 July 1940. As it happens, this mistake is not due to anything done by the claimants, but instead appears to have been an error made by one of the lawyers involved at an earlier stage. I emphasise, however, that this mistake makes no difference whatever to the validity of my order for the declaration of presumption of death contained in it. But it appears from the evidence of Mrs Kaur Mills to have caused difficulties in the administration of the estate, in that financial institutions holding assets to be collected in for administration have refused to do so without a correction first being made to the date in the annex to my order.
Obviously, I have not heard from any of the institutions concerned, but I have to say that I am disappointed by this reaction. As long as the relevant institutions are satisfied that this declaration of presumption of death relates to the person who owned the assets which they hold, it should be no impediment that there is a small error in the date of birth (day and month being correct, year being one out). And, in circumstances where these assets have lain untouched since Mr Irish disappeared, all the other details match, including his names and address, and the solicitors applying to the institutions have all the correct details of his assets, I can see no reason why they should not be satisfied that my order relates to the former owner of these assets. The chances of there being anyone else with the same names, born on the same day and month, and with the same address, owning exactly the same assets, are vanishingly small. Nevertheless, that is the stance which they have adopted. The claimants now seek to deal with the matter pragmatically, by obtaining an amendment of the Schedule of Prescribed Information, rather than seeking coercive orders against the institutions concerned to require them to pay over the assets on the footing that the owner is conclusively presumed to have died (see section 3 of the 2013 Act).
Jurisdiction to amend the order
The question therefore is how such an amendment can be obtained from the court. Because claims under the 2013 Act are in effect claims in rem, effective against the world, and brought against no defendant (although certain persons must be notified of the proceedings and have the right to take part if they wish), this application has not been served on any other person. In one sense this is unfortunate, because it means that I have only heard the claimants' side of the relevant evidence and argument. I have therefore considered whether it would be desirable for some other person to be notified.
So far as concerns the persons entitled to be notified of proceedings under the 2013 Act, none expressed no wish to take part in the main claim, and, frankly, the trivial nature of the error means that they can have no interest in opposing the application. On the contrary, the interest of the estate beneficiaries and creditors must lie the other way. I have also considered whether I should ask for the appointment of a friend of the court to offer appropriate arguments. However, looking at the material placed before me and the relevant authorities, I think it is unnecessary to take such an elaborate step, and I have decided to deal with this matter on the papers.
The ‘slip’ rule
In her witness statement, Mrs Kaur Mills refers to the jurisdiction of the court to deal with clerical errors under the so-called “slip rule”, under CPR rule 40.12. The relevant part of that rule provides:
“The Court may at any time correct an accidental slip or omission in the judgment or order.”
She concludes however that this jurisdiction is not available to the court in the present case, because the declaration which I made “reflected the Court's intention based on the information before it”. In other words, even though the court was unintentionally given the wrong information, nevertheless what the court intended to do was to make a determination based on that incorrect information, and therefore it is not a clerical error in recording the court's order. It is for that reason, no doubt, that the application has been made in Form N244, supported by evidence.
For myself, I am not sure that the slip rule jurisdiction is so limited. For example, in Riva Bella SA v Tamsen Yachts GmbH [2011] EWHC 2338 (Comm), Eder J held that the jurisdiction was available to correct an incorrect statement of the amount of money for which judgment was to be given, which was the result of a mistake made by counsel for one party in calculating the sum due. The mistake was not noticed by the other counsel, and the information was presented to the court as accurate and found its way into the order made by the judge. Eder J said:
“23. … For the avoidance of doubt, the fact that the slip or omission may arise from the accidental omission of counsel does not mean that CPR 40.12 is not engaged nor that there is any bar to the exercise of the discretion under the slip rule… In the present case, it was never the court's intention to award the defendant sums which it had already received. Rather, the court's intention was to award the defendant those sums which it was owed and which were still outstanding. No more, no...
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