Irish & Anor, Re Presumption of Death Act 2013

The court may direct correction of an error in the Register of Presumed Deaths under paragraph 5(2) of Schedule 1 to the Presumption of Death Act 2013 by application in the original proceedings. A fresh claim is unnecessary where the relief sought is correction of the Register. The statutory correction mechanism is distinct from varying or revoking the declaration itself. The court left open whether the slip rule could correct information which was wrongly supplied to, and accurately recorded by, the court. The power to vary a final order under CPR rule 3.1(7) is subject to a high threshold and was not required for this correction.

The claimants applied on paper to amend the Schedule of Prescribed Information attached to an earlier declaration that Leslie Roger Irish was presumed dead. The declaration, presumed date and place of death were not challenged. The application concerned only an erroneous year of birth, stated as 1939 instead of 1940, which had impeded administration of the estate.

The court considered the slip rule, the power to vary orders, the statutory variation procedure, and the statutory mechanism for correcting the Register of Presumed Deaths. The central issue was how the error should properly be corrected.

1. Application granted. The court directed the Registrar General to secure correction of the Register of Presumed Deaths so that the missing person’s year of birth was recorded as 1940. The declaration of presumed death, and the presumed date and place of death, remained untouched.
2. The court left open whether CPR rule 40.12 could correct an error where the court’s order accurately reflected its intention, but that intention had been formed on information accidentally misstated by a party’s representative. Riva Bella SA v Tamsen Yachts GmbH [2011] EWHC 2338 (Comm) supported a broad approach to the slip rule, but no final determination was necessary.
3. Under CPR rule 3.1(7), the jurisdiction to vary or revoke an order is broad but subject to principled limits, including finality, the avoidance of relitigation and the preservation of the appellate process. The usual circumstances include a material change of circumstances or an innocent or deliberate misstatement of facts. Tibbles v SIG plc [2012] EWCA Civ 518 was applied. Because the earlier order was final, the threshold was higher; the judge doubted that anything less than fraud would justify setting it aside, and an unwitting misstatement was insufficient.
4. The variation or revocation provisions in sections 5–8 of the Presumption of Death Act 2013 were not the appropriate route. They require a fresh claim under CPR Part 8 and notification of the relevant persons.
5. The error concerned the Register rather than the declaration itself or the annex as an operative part of the order. Paragraph 5(2) of Schedule 1 empowered the court to direct correction of an error in the Register. The application could be made by Form N244 in the original proceedings, without a fresh originating process or amended application notice.

The judgment was a first-instance decision on an application in proceedings in which the court had previously made a declaration of presumption of death in Re Leslie Roger Irish [2019] EWHC 2508 (Ch).