CD, Re presumed death of AB

Under the Presumption of Death Act 2013, an application based on a belief that the missing person has died may be made without waiting seven years. The court must decide the date and time of presumed death. Where death is established but the evidence does not identify when it occurred, the relevant period under section 2(3) may end on the hearing date, so that the time of death is fixed when the declaration is made. The seven-year default in section 2(4) applies only where the court is not satisfied that the person has died. Advertising requirements should be applied purposively, and a mandatory case-management hearing under Practice Direction 57B may be dispensed with where the court’s case-management powers permit disposal at the first hearing.

CD applied for a declaration under the Presumption of Death Act 2013 concerning AB, a British citizen who was abducted in Yemen on 12 June 2009 while working for a healthcare NGO. AB’s body was never found. The Foreign and Commonwealth Office had assessed that he was probably dead, but the evidence did not establish when death occurred.

The claim was heard by the High Court (Chancery Division). The court considered its jurisdiction, the evidential requirements for the two statutory grounds, the date and time to be included in a declaration under section 2, advertising and notification requirements, and whether the claim could be disposed of at the first hearing.

1. Declaration granted. The court was satisfied on the balance of probabilities that AB had died. The evidence was sufficient when considered as a whole, although the FCO evidence was necessarily limited because its sources and intelligence could not be disclosed.
2. The two grounds in section 2(1) have different evidential characters. An application under section 2(1)(a) may be made without any minimum period after disappearance where the evidence positively establishes death. The evidential cogency required under that ground will generally be greater than under section 2(1)(b), which concerns the person not having been known to be alive for at least seven years.
3. Section 2(2) requires the declaration to include a finding of the date and time of death. Section 2(3) applies where death is established but the time is uncertain. The statutory reference to death occurring during a period gives little practical guidance as to how that period is to be fixed. Where the evidence supplies no sufficiently reliable earlier endpoint, the period may end on the hearing date. The time of death may then be fixed at the moment during the hearing when the court confirms that the declaration will be granted. The seven-year default in section 2(4) is unavailable because it applies only where the court is not satisfied that the missing person has died.
4. The advertising requirement in section 9(2) and CPR 57.21 should serve its purpose of notifying persons who may know the missing person’s whereabouts or death, and those interested in the order. In an appropriate case involving disappearance abroad, advertising near the missing person’s permanent English address may be sufficient, although that question did not arise for decision because the advertisement in Yemen fulfilled the formal requirement.
5. Although paragraph 1.4 of Practice Direction 57B requires a case-management hearing in every case, the court may use CPR 3.1(2)(b) and (m) to hear and dispose of the claim at the first hearing. The court observed that the inflexibility of paragraph 1.4 warranted consideration by the Civil Procedure Rule Committee.