Johnson v No Named Defendant

Under section 2 of the Presumption of Death Act 2013, the court must distinguish between being satisfied that a missing person has died and being satisfied only that the person has not been known to be alive for seven years. Where death is established but the time of death remains uncertain, the presumed date is the end of the period during which the uncertainty persists. If the evidence provides no principled earlier end date, that period may extend to the hearing. The court must then include a finding of death at that time, even where the result appears artificial or produces difficult consequences for estates and pension payments.

The claimant sought a declaration under the Presumption of Death Act 2013 concerning his missing brother, who had disappeared in March 2011 and had never been found or heard from again. The evidence established, on the balance of probabilities, that the missing person had died, but did not identify when death occurred. The court considered the difficulty created by section 2 where death is proved but the date and time remain uncertain, including the reasoning of CD, re AB [2019] EWHC 2785 (Ch). The central issue was the date and time to be included in the declaration.

1. Declaration required. The court was satisfied on the balance of probabilities that the missing person had died. Section 2(1)(a) therefore applied. Section 2(1)(b), which provides a seven-year default date where the court is not satisfied that the person has died, was unavailable.
2. Uncertain time of death. Under section 2(2) and (3), the declaration had to include a finding as to the date and time of death, fixed at the end of the period during which the court was uncertain when death occurred. The court agreed with the difficulties identified by Chief Master Marsh in CD, re AB [2019] EWHC 2785 (Ch), including the absence of statutory guidance on how that period should be established.
3. End of the period. The evidence showed no reliable point between the disappearance and the hearing at which the uncertainty ended. Although death was more likely to have occurred earlier, the court could not identify an earlier date on the balance of probabilities. The period therefore ended at the hearing.
4. Result. The court made the declaration and found that the missing person was presumed to have died at 11:30 am on 5 February 2020. The judge recognised that this did not accord with common sense, but held that it was required by the statutory wording.

First-instance decision. No prior or appellate decision is stated in the judgment.