Greathead v Greathead, Court of Appeal - Chancery Division, May 19, 2017, [2017] EWHC 1154 (Ch)

Issuing Organization:Chancery Division
Actores:Greathead v Greathead
Resolution Date:May 19, 2017
 
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Case No: D30BS837

Neutral Citation Number: [2017] EWHC 1154 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Date: 19/05/2017

Before :

HHJ PAUL MATTHEWS

(sitting as a Judge of the High Court)

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Between :

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The Claimant appeared in person

Hearing dates: 18 May 2017

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JudgmentHHJ 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. After making the declaration, I said I would give my reasons in writing. These are those reasons.

  2. The claim form was issued under CPR Part 8 on 13 March 2017, and was accompanied by the information required under CPR rule 57.19 (2), and Practice Direction 57B paragraph 1.1. It is also supported by the personal statement of the claimant, and other evidence consisting of various responses to questions raised with relevant agencies and potential witnesses, which are all treated as incorporated into the particulars contained in the claim form.

  3. The claim form was issued in the District Registry of the Queen's Bench Division of the High Court in Exeter. However, CPR rule 57.18 requires that a claim for a declaration of presumption of death should be brought either in the Chancery Division or in the Family Division of the High Court. Accordingly, the claim was transferred from the Queen's Bench Division (Exeter District Registry) to the Chancery Division (Bristol District Registry) on 20 March 2017. In compliance with Practice Direction 57B, paragraph 1.4, a directions hearing was listed on 4 May 2017, being more than 28 but less than 56 days after issue. This requirement is to allow time for those given notice of the claim or responding to the advertisement of the claim to file a notice of intention to intervene, or to apply for permission to do so.

  4. In accordance with CPR rule 57.20 (1), the claim form was served on Edward's mother, Monique Greathead, his sister, Tanya Hobley, and his brother Nicholas Greathead. Each of them filed an acknowledgement of service, indicating no intention to defend the claim. (The form is inapt, since the opportunity for the person served is to intervene in, rather than defend, the claim.) The three forms were received by the court on 28 March 2017. The claim form was also served on the Royal London Mutual Insurance Society Ltd. The Society did not file an acknowledgement of service, but wrote a letter dated the 24 March 2017 indicating that it had no wish to take part in the proceedings.

    Parties

  5. In ordinary litigation, a claimant must decide whom to name as a defendant. As a general rule, the claimant may sue whom he or she wishes, and will generally name as a defendant a person whom the claimant wishes to be bound by the decision. A claim for a declaration of presumed death under the 2013 Act is however different, partly because it operates as against the whole world, and not just between the parties. Section 9(1) of the Act provides as follows:

    ``A person who makes an application under this Act for a declaration or a variation order must send to the persons specified by rules of court -

    (a) notice of the application, and

    (b) any other information specified by rules of court.''

    CPR rule 57.20 provides in part that

    ``(1) Where the claim is for a declaration of presumed death, the claimant must give notice of the claim by serving a copy of it on the following persons (where not the claimant) -

    (a) the spouse or civil partner of the missing person;

    (b) any parent of the missing person;

    (c) any child of the missing person;

    (d) any sibling of the missing person;

    (e) if there are no persons within subparagraphs (a)-(d), the nearest relative of the missing person known to the claimant; and

    (f) any other person (including in particular any insurance company) appearing to the claimant to have an interest in the claim.''

  6. There is no reference, whether in the statute or in the rules, to joining any person as a defendant to the claim. Moreover,...

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