Mrs. S.c. For Judicial Review Of A Decision Of The Service Personnel And Veterans Agency Of The Ministry Of Defence
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Neutral Citation | [2011] CSOH 124 |
| Date | 03 August 2011 |
| Court | Court of Session |
| Docket Number | P651/11 |
| Published date | 03 August 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH | |
| P651/11 | OPINION OF LORD BRODIE in the cause MRS S C Pursuer; for Judicial Review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence and for suspension and suspension ad interim of that decision and for interdict ad interim ________________ |
Pursuer: D M Campbell; Balfour & + Manson LLP, Solicitors
First respondent: K J Campbell; Morton Fraser
Second respondent: Philip M Stuart; Morisons
[Date of Issue]3 August 2011
The application
[1] This bears to be an application for judicial review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence ("the JCCC"), as contained in its letter of 6 June 2011.
[2] The petitioner is the widow of a private soldier, Mark C, who died on 14 May 2011("the deceased"). At the time of his death the deceased was serving in The Black Watch, 3rd Battalion, The Royal Regiment of Scotland ("the Regiment"). He is understood to have died as a result of an assault by one or more of his comrades while on a training course in Germany. The petitioner She was named as the universal legatee in his will. She is therefore entitled to apply for a dative appointment as executrix in preference to any other candidate for such appointment. The first respondent is the Advocate General for Scotland as representing the Secretary of State for Defence. In this opinion I shall use the expression "the first respondent" to comprehend the Secretary of State and any officer acting on his behalf or otherwise exercising the prerogative powers to provide for national defence in relation to the matter with which this petition is concerned. The second respondent is a person upon whom service was made as having an interest. She is the mother of the deceased. The deceased nominated her as executrix in his Will.
[3] The deceased's body was initially retained by the German police before being released to the Regiment. It was returned to London. It remains there.
[4] By letter dated 6 June 2011 the JCCC intimated to the petitioner and the second respondent its decision to release the deceased's body to the second respondent.
[5] As appears from the petitioner's averments, a dispute has arisen as between the petitioner and the second respondent as to the arrangements to be made for the funeral of the deceased.
[6] The order for service of the petition was made on 14 June 2011. Answers were lodged on behalf of the first respondent on 30 June 2011. The petition came before me for a first hearing on 1 July 2011. Answers have not been lodged on behalf of the second respondent but she appeared represented by counsel, as did the other two parties. I heard argument on 1 July 2011 and at a continued first hearing on 19 July 2011.
The background circumstances
[7] It appears from the first respondent's averments that the JCCC is the branch of the Ministry of Defence which is involved inter alia in liaising between members of the immediate families of members of HM Forces who are injured or killed, the unit of which the serviceman or woman was a member, and other parts of the service. Correspondence produced by parties would indicate that the JCCC is a subordinate agency of the Service Personnel & Veterans Agency of the Ministry of Defence. Death or serious injury will be reported to the JCCC by the unit of which a serviceman or woman was a member. In the case of the deceased that was the Regiment. From there the information will be conveyed to the unit headquarters, and thence to the immediate family. Close family members will be assigned a Visiting Officer, who will generally be a serving member of the unit of which the serviceman or woman was a member. The Visiting Officer acts as the point of contact for the family member of members concerned.
[8] The history of the dispute is set out in the petition as originally presented as follows:
"5. That following repatriation of the deceased's body to the United Kingdom the JCCC took responsibility for matters. They initially indicated to the Petitioner and her family that they intended to release the body to her and so follow the deceased's last known wishes for his funeral. These were for burial in Forfar or wherever they were settled as a couple. A full military funeral was suggested by the Regiment. A dispute then arose between the Petitioner and [the second respondent] over the manner of the funeral and interment. [The second respondent] complained to her Visitation Officer. The Regiment then referred to the deceased's Will Form for Service Personnel. A copy thereof is produced herewith. The Will appointed his mother and brother, ... as his executors. The Petitioner is named as residuary beneficiary. The Regiment took legal advice. That advice was that in England case authority favoured an executor over a relative in term of the right of custody of the body but that the position in Scotland was not conclusive.
6. That on Wednesday 1 June 2011 the Petitioner's Visitation Officer, Colin Gibson advised her that the body of the deceased could not now be released to her custody as intended and advised her to contact the JCCC for clarification of the situation. On the morning of Monday 6 June 2011 the JCCC confirmed by telephone to the Petitioner's solicitor that they would retain the deceased's body until such time as agreement was reached with all parties or an order of court was received. Later on 6 June 2011 the JCCC in a further telephone conversation with the Petitioner's solicitor intimated a change in their position. Due to the policy and procedure laid down in the MoD handbook, and as a result of the advice received, they had decided that the deceased's body would be released to [the second respondent] on Thursday 9 June 2011. By recorded delivery letters dated 6 June 2011 the JCCC formally intimated to the Petitioner and [the second respondent] the decision to release the deceased's body to [the second respondent] and that they would liaise over funeral arrangements and marking of the grave with her. A copy of the letter dated 6 June 2011 from the JCCC to the Petitioner setting out said decision is produced herewith and referred to for its terms which are held to be incorporated herein brevitatis causa. After further discussion with the Petitioner's solicitors the JCCC agreed not to release the deceased's body until Friday 10 June 2011. There were then discussions between the Petitioner's solicitors and the Respondent's solicitors which resulted in the JCCC undertaking not to release the deceased's body until either the Petitioner and [the second respondent] reach agreement on how to proceed, or there is an order of the court.
8. That the deceased did not leave written instruction regarding his funeral. He made his wishes known to his wife. He indicated his wish to be buried. He did not want to be buried in Methil. He did not like the place. He wished to be buried wherever he and the Petitioner were settled. The Petitioner indicated to him that she would probably have chosen cremation but her view had changed since the death of her brother who was buried in Forfar. The deceased indicated that it would suit him to be buried along with the Petitioner's brother. When difficulty over the funeral arrangements arose the Petitioner offered that he would be buried on his own in Forfar rather than alongside her brother. The deceased said that he did not want black at his funeral. The Petitioner's Visitation Officer indicated to the Petitioner that the JCCC would follow the deceased's last known wishes being a funeral and interment in Forfar. This position seemed to be maintained even after the dispute arose as the legal advice as to the executor's pre-eminence was not conclusive. [The second respondent] intimated that she would insist on her own funeral arrangements with interment at a family lair in the Wemyss, Fife. The JCCC originally intended to release the body to the Petitioner as widow without any reference to the Will and the appointment of an executor in accordance with their normal procedure. It was intended that a full military funeral would be undertaken at which many of the deceased's colleagues wished to attend. The Regiment made arrangements for the military funeral and interment in Forfar which would be paid for by them. An officer attended at the intended place of the service and interment in Forfar. Local funeral directors were instructed. The Petitioner wishes these arrangements to be implemented. In the event of the body being released to [the second respondent] these arrangements will not be implemented. By letter dated 24 May 2011 ..., the Petitioner's solicitors wrote to ... [the second respondent's] solicitors, enquiring as to the possibility of any agreement being reached between their respective clients. In terms of an email of 26 May 2011 from [the second respondent's solicitors] to [the petitioner's solicitors] it was proposed that (1) the deceased's body be placed in the care of a funeral director of her choice; (2) a military funeral take place in Forfar; (3) those attending should be encouraged to wear "colour" or any reasonable clothing as suits individual choice and (4) the interment take place in Weymss. [The petitioner's solicitors] sent an email to [the second respondent's] solicitors on 9 June 2011 raising the possibility of discussions about an agreement being reached between their respective clients. To date there has been no response. The Petitioner and [the second respondent] therefore remain in dispute about the place of interment. Copies of the letters and emails of 24 May, 26 May and 9 June all 2011 are produced.
9. That there was a strong relationship between the deceased and the Petitioner. They first met towards the end of 2007. They became engaged in July 2008 and married in February 2009. The Petitioner nursed the deceased back to health following his sustaining of serious injuries...
To continue reading
Request your trial
-
Ruddy v Chief Constable, Strathclyde Police
...to proceed by way of an ordinary action in the sheriff court falls into the same pattern; see also C v Advocate General for Scotland [2011] CSOH 124, 2012 SLT 103. I would respectfully endorse the reasons which the Lord President gave in paras 22–24 for rejecting the argument, which was pr......
-
Judgment Of Sheriff Valerie Johnston In Cause Mrs. S.c. Against Mrs. L.m.
...dismissing the petition as incompetent Lord Brodie compared the position in English and Scots law. His opinion P 651/11 can be found at [2011] CSOH 124. He concluded that the approach was different in Scotland. Lord Brodie noted that at the date of the continued hearing before him on 19 Jul......
- MRS S C Pursuer Against MRS. L M Defender
-
Burial Disputes
...the deceased’s clearly expressed wishes, as demonstrated in evidence and the signed documents. In the Scottish case of Connolly v MOD [2011] CSOH 124, the dispute was between the widow and the mother of a private in the Black Watch, who died while on training in Germany and hence his body w......
-
Table of Cases
...1 Costs LR 13 225 Clyne v Conlon [2021] EWHC 2444 (Ch), [2021] 9 WLUK 124 198 Connolly v MOD; sub nom C v Advocate General for Scotland [2011] CSOH 124, 2012 SLT 103, 2011 Scot (D) 10/9 149, 151 Cook’s Estate, Re; Murison v Cook [1960] 1 All ER 689, [1960] 1 WLR 353, 104 Sol Jo 311, PD&A 27......