Greathead v Greathead

For a declaration of presumed death, the civil standard of proof applies. The court must distinguish between being satisfied that the missing person has died and being satisfied only that the person has not been known to be alive for at least seven years. Where the evidence makes death more likely than not, the court should proceed under section 2(1)(a) of the Presumption of Death Act 2013. The date and time recorded should reflect the period during which death is more likely to have occurred. The statutory procedure requires notice to specified persons and public advertisement, but it does not require a defendant to be named. A procedural failure in the timing of an advertisement may be remedied by extending time under the court’s case-management powers.

The claimant applied under Part 8 for a declaration that his son, Edward, was presumed dead. Edward had disappeared in Sidmouth on 17 November 2005 and had not been seen or heard of since. The claim was initially issued in the Queen’s Bench Division and transferred to the Chancery Division because claims under the Presumption of Death Act 2013 must be brought in the Chancery or Family Division.

The claimant had served the prescribed relatives and an insurer, and had arranged publication of the claim. The issues included the appropriate procedural form, jurisdiction, the late publication of the advertisement, and whether the evidence established death itself or only the statutory period of unexplained absence.

1. Procedure and parties. A claim for a declaration of presumed death operates against the whole world. The statutory and procedural scheme requires notice to specified persons and possible intervenors, rather than the naming of a defendant. The claimant should therefore ordinarily identify no defendant, while giving the required notices.
2. Advertisement. The requirement to ensure that notice is published concerns actual publication, not merely arranging publication. The advertisement was two days late. That defect could be remedied under CPR rule 3.1(2)(a), and time was extended accordingly.
3. Jurisdiction. The evidence established habitual residence in England throughout the relevant year. It was therefore unnecessary to determine domicile conclusively. The claimant, as the missing person’s parent, was entitled to apply without a separate inquiry into sufficient interest.
4. Proof and declaration. The ordinary civil standard, the balance of probabilities, applied. The evidence of serious mental illness, suicidal ideation, low mood, possible failure to take medication, disappearance without clothing or means of support, severe weather, physical infirmity, extensive searches and the absence of subsequent financial activity established that Edward had probably died soon after disappearing. The court therefore proceeded under section 2(1)(a), rather than section 2(1)(b).
5. The court declared Edward presumed to have died on 17 November 2005. Midnight was recorded because it represented the end of the day during which, on the evidence, death was more likely than not to have occurred.