Analysis
This was an application for a declaration under the Presumption of Death Act 2013 in respect of a man (‘E’) who had disappeared on 17 November 2005 and had not been heard of since.
The claimant and his family came from South Africa to England in 1980. E was the claimant’s son. E was born in South Africa and was 15 when he arrived in England. He had difficulty adapting to life in England, but finished formal education and entered employment. From late 1998 he suffered panic attacks at work. He developed depression and resigned in October 1999. He lived in a flat adjoining the claimant’s house. He received medication for his depression. He contemplated suicide and had written notes that could fairly be described as suicide notes in the past. In the summer of 2005, the claimant and his wife spent the summer renovating their holiday home in France. E declined to join them. Due to a shortage of NHS sheltered accommodation he was placed at Blackmore House in Sidmouth.
On 17 November 2005, E was seen at 2pm by a resident, but has not been seen since. He left no note or letter. An extensive search was carried out by police and coastguard without success. He had left behind his wallet, passport, cheque-book, bank cards and spectacles.
Against this background the claimant, supported by the rest of the family made an application for a declaration under the Presumption of Death Act 2013.
Held (granting the declaration):
1) It was important to give relevant notice to the required persons (see CPR r.57.20), which had been done. It would be appropriate to issue a claim form under the Act without naming defendants.
2) The Act required advertisement of the claim (see section 9(2) and CPR 57.21). In this case although the advertisement was late, the Court could exercise its powers under CPR 3.1(2)(a) to extend time and there was no reason in this case not to do so.
3) The court’s jurisdiction under the Act required either that the missing person be domiciled in England and Wales on the day on which he was last known to be alive (s.1(3)(a)) or habitually resident in England and Wales throughout the period of one year ending with that day (s.1(3)(b)). In this case the habitual residence requirement was satisfied.
4) the standard of proof in civil cases is the ‘balance of probabilities’. The question under section 2(1)(a) was whether the court can be satisfied on the evidence before it that E had in fact died. In some cases, this approach will not be appropriate, and the court will proceed under section 2(1)(b), which provided that the person ‘has not been known to be alive for a period of at least 7 years’.
5) E was suffering from clinical mental illness. He was not able to look after himself properly. He suffer from suicidal thoughts in the past. He disappeared without warm clothes, access to money, passport, proper spectacles and mobile phone, and so far as is known had nowhere else to go. He had not been seen or heard of since 2005 despite extensive searches and the lapse of time. This led to the likelihood of some action whether deliberate or accidental which resulted both in his death and the fact that a body was never discovered. It was more likely than not that he died soon after his disappearance.
6) Accordingly it was right that the court should make a declaration that E was presumed to have died on the day that he disappeared. The court was required to state not only the day but the time of presumed death. This was recovered as midnight on 17 November 2005.
JUDGMENT HHJ PAUL MATTHEWS: Introduction [1] 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. …Continue reading "Greathead v Greathead [2017] WTLR 939"