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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Austin v Mitchell & Anor  EWHC 3486 (Ch) (14 August 2020)
Cite as:  EWHC 3486 (Ch)
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
PROPERTY TRUST AND PROBATE LIST (Ch)
London EC4A 1NL
B e f o r e :
| DENISE MARY AUSTIN
|- and -
|(1) GEMMA MITCHELL
(2) MAXWELL HORVATH
Unit 1 Blenheim Court, Beaufort Business Park, Bristol, BS32 4NE
Web: www.epiqglobal.com/en-gb/ Email: firstname.lastname@example.org
(Official Shorthand Writers to the Court)
The Defendants did not attend and were not represented
Crown Copyright ©
"1 Applying for a declaration
(1) This section applies where a person who is missing -
(a) is thought to have died, or
(b) has not been known to be alive for a period of at least 7 years."
"The court has jurisdiction to hear and determine an application under this section only if -
(a) the missing person was domiciled in England and Wales on the day on which he or she was last known to be alive…"
"On an application under section 1, the court must make the declaration if it is satisfied that the missing person -
(a) has died, or
(b) has not been known to be alive for a period of at least 7 years.
(2) It must include in the declaration a finding as to the date and time of the missing person's death."
"(3) Where the court -
(a) is satisfied that the missing person has died, but
(b) is uncertain at which moment during a period the missing person died,
The finding must be that the missing person is presumed to have died at the end of that period."
"(2) Where immediately before this section came into force a woman was married and then had her husband's domicile by dependence, she is to be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisition or revival of another domicile either on or after the coming into force of this section."
Advertisement of the claim
"15. Section 9(2) of the Act requires that an application must be advertised in accordance with rules of court and CPR 57.21 specifies that the advertisement must in a newspaper circulating "in the vicinity of the last known address of the missing person". The provision may serve no purpose in the case of a person taken hostage abroad and the comparable provision in the Guardianship (Missing Persons) Act 2017 and CPR 57.29 may even put the life of the missing person at risk. However, whether the requirement of the Act and the rules is one that can be waived by the court is not an issue that arises in this case. The provision has caused difficulty because AB's last known address was taken to be his address in the Yemen, albeit that he had only been resident at that address for just over a month and the period of time he was due to reside there was only 5 months. With some difficulty, an advertisement has been placed in a newspaper called Al-Ayyam that is based in Aden. I am satisfied that this fulfilled the requirements of the Act.
16. However, it seems to me that it would have been sufficient to have advertised the claim in a newspaper circulating in the vicinity of AB's address in England. This was his permanent address and one to which he had intended to return within a matter of months. The purpose that lies behind the requirement to advertise is to ensure both that persons who may have knowledge of the missing person's whereabouts, or when they may have died, and those who may be interested in the making of an order under the Act have notice of the proceedings. There will be cases in which a person goes missing in a war zone or in a very isolated part of the world where an advertisement locally is not a practical proposition. It is unlikely that an inability to advertise in such an area was intended to thwart the claimant's ability to make an application. If, however, the missing person has moved to reside abroad on a permanent basis, local advertising may be essential."
The declaration of presumed death
"Dear Mrs Allan
Thank you for your letter of 1 November regarding passport records. We are not a passport issuing office, however the passport section of the British High Commission Ottawa have checked their files back to 1986 and show no record of a Charles Karoly John Horvath applying for any type of passport facility. I trust this will prove of some help to you."
"When I first entered the campsite I encountered Tiny Town resident Kevin Trent Egan ('Trent Egan'), at that point he did not admit to having any of Charles' possessions and kept reiterating that I would have to wait until the campsite manager, Phil Flett ('Flett'), came back and speak to him. Trent Egan and I sat in the scorching heat and awaited the return of Flett. When he returned to the campsite, Flett said he recalled Charles. He went directly to an orange shed and returned with three small items belonging to Charles, a rosary, a tiny bible and a leather strap off Charles' boot."
"Dear Mrs Allan,
I seen your ad in the paper looking for your son. I seen him in Tiny Tent Town May 26. We were partying and two people knocked him out but he died. His body is in the lake by the bridge."
"Because the circumstances surrounding Mr Horvath's disappearance are suspicious, investigators believe that Mr Horvath may have met with foul play and died in August of 1989."