Justice CommitteeWritten evidence from Clifford Chance LLP

About Us

1. This submission is made by Clifford Chance LLP in response to a call for evidence on 21 July 2011 by the Justice Committee.

2. Clifford Chance is one of the largest global law firms with 33 offices in 23 countries, and over 3,500 legal advisors, the largest number of whom are based in London. We are regulated by the Solicitors Regulatory Authority of England and Wales.

3. Our interest in the presumption of death stems from our relationship with the charity Missing People, for whom we have worked in a pro bono capacity for over five years. On behalf of, and in conjunction with, Missing People we drafted the Private Member’s Bill introduced by Tim Boswell MP (now Lord Boswell) in January 2009. Following meetings with, and at the request of, officials at the Ministry of Justice, we also drafted a consultation paper on the issue, with a view to its publication as a government consultation paper (with a draft Bill attached). Unfortunately, due, we believe, to competing priorities, this paper was never finalised, and was not issued. We would be happy to send the Committee a copy of the draft consultation paper, should the Committee feel this would be helpful.

Does the current system work effectively?

4. The current law in England and Wales does not, in our view, provide a clear process by which a missing person can be presumed dead, with universally applicable effect at a point when factors such as the passage of time and, more pertinently, the circumstances of the disappearance would make such a presumption reasonable. The existing law is piecemeal and specific to particular situations, and is contained in a mixture of different statutory provisions and the common law.

5. At common law there is a presumption that a person lives a natural life span unless there is a reason to suspect he or she is dead. The expectation therefore is that a missing person will live into old age if he or she was in good health prior to disappearance and in the absence of evidence to the contrary. This expectation has been refined by case law, notably in Chard v Chard, which has allowed the court to presume death under certain conditions. These conditions are: that there are persons who would be likely to have heard from the missing individual during a period of seven years or more; that those persons have not received information of the missing person during that period; and that enquiries have been made as to the person’s whereabouts. A combination of these three factors will enable a court to make a presumption that, for the purposes of the specific proceedings before it, the individual is dead. However this presumption does not then have wider application to all the missing person’s property or affairs - only to those which touch on the case being heard in court at the time. This approach therefore risks considerable duplication of effort, and consequent additional cost, both for the courts, and for the missing person’s family and other connections.

6. Alongside the common law, there are statutory provisions addressing presumed deaths in specific scenarios, such as the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004; the Offences Against the Person Act 1861; the Non-Contentious Probate Rules (made by Statutory Instrument in 1987 under the authority of the Supreme Court Act 1981) and the Social Security Act 1998.

7. The High Court may make a presumption of death as a basis for an order for dissolution of a marriage or partnership. Such a presumption can be made if the missing spouse or civil partner has been absent for a period of seven years or more and the other spouse/civil partner has no reason to believe that he/she was alive during that seven year period. These provisions are, however, very rarely used as a spouse or civil partner who wishes to remarry has the alternative option of petitioning for divorce or dissolution on grounds of desertion after only five years.

8. The Non-Contentious Probate Rules allow a district judge or registrar to grant an applicant leave to swear to the death of a person “to the best of his information or belief” in cases where death is presumed rather than proven. Such leave can be taken at any point after the person’s disappearance, ie there is no need for the elapse of seven years. It is important to note, however, that in granting leave the High Court is not making a presumption of death but merely giving the applicant the opportunity to swear to the death as a pre-condition for obtaining a grant of probate in order to administer the missing person’s affairs.

9. Furthermore while a grant of probate is obviously essential to enable a missing person’s estate to be administered it will often not be enough to undertake that administration effectively. Banks and other holders of investments frequently require to see both a grant of probate and a death certificate before they will release funds to executors or administrators.

Does the current system create difficulties for families and, if so, how can these be resolved?

10. As a large commercial law firm, our knowledge of the difficulties caused for families by the current system is purely second-hand, gained through our association with Missing People. However, it was precisely the difficulties faced by families of missing persons that created the impetus for the drafting of the Bill and the consultation paper (see paragraph 3 above).

11. Moreover, as a matter of principle, we consider it inevitable that the current system will cause difficulties for the families of missing persons. The complexity and overlapping nature of the differing rules and procedures for different situations creates considerable scope for both confusion and duplication of resources and effort. Lawyers advising the families of missing persons are likely to have to spend a disproportionate amount of time researching the common law and statute law provisions, and families may need to take a number of different proceedings to court in order to resolve all outstanding issues.

12. In our opinion, establishing a procedure to enable families to obtain a certificate of presumed death, which would have equivalent effect to a normal death certificate, would greatly simplify and clarify the current confused system, and bring benefits for families, at the same time as saving court time.

Approaches to reform other than primary legislation

13. It could be argued that the difficulties could be resolved through guidance and revised codes of practice rather than legislation. However there are two problems with that administrative approach. Firstly, private institutions could be a risk of civil action if they were merely following a code in the absence of a statutory framework, and may not be willing to release assets on that basis. Secondly, given the very wide scope of the institutions that might be involved, including for example public bodies such as the Land Registry, the process of creating and implementing such codes would be onerous compared with the effects of legislation.

14. Another option might be to extend the jurisdiction of the Coroner to cover missing persons in some circumstances. Coroners currently have a duty to investigate within their area when there is a deceased person reported and a duty to make a report to the Chief coroner when that duty does not arise due to the “destruction, loss or absence of a body”. This, however, assumes that there is at least evidence that a death has taken place, which in the case of a missing person there may not be. Moreover their established expertise is in ascertaining how a person died rather than to take responsibility for determining that a death has taken place in the absence of any definitive evidence.

15. Another alternative could be to amend the existing legislation concerning the registration of deaths in order to allow an investigation by a public body such as the police to conclude and certify a missing person as dead, provided the person has been missing at least seven years. While an attractive option this once again raises the possibility of involving existing public officials in a process which is outside their traditional remit. Furthermore it is difficult to see how the elements of intervention, variation and insurance, all of which are necessary safeguards, could be easily incorporated into the existing system without primary legislation.

What can we learn from the experiences of Scotland and Northern Ireland which have Presumption of Death Acts?

16. When drafting the Presumption of Death Bill introduced in 2009, we looked closely at both the Scottish and Northern Irish precedents, noting that officials drafting the Northern Irish Act (only passed in 2009) had in turn given close consideration to the Scottish legislation.

17. It would appear that the driver behind the Presumption of Death (Scotland) Act 1977 was a report by the Scottish Law Commission report which criticised the multiplicity of different legal frameworks dealing with the question of missing persons and recommended a single piece of legislation which could be used to obtain a presumption of death.

18. The Act provides that “any person having an interest” (s1.(1)) can raise an action in the Court of Session or the sheriff court to have a missing person “thought to have died or not known to be alive for a period of at least seven years” (s1.(1)) declared dead by decree. Any person having an interest would obviously include close family members and civil partners but could also include others such as creditors. The Scottish law, and the more recent Northern Irish law, have, in common with the established common law principle, used seven years as the minimum time elapsed since disappearance but we understand that a number of American states use shorter periods. The court also has the power to determine any questions relating to interests in property arising as a result of the missing person’s death.

19. The decree is subject to a variation order (except in so far as it applies to marriage or civil partnership) in the event that new information arises concerning the missing person, such as a change in the estimated date of death or, in extreme cases, the reappearance of the disappeared. Trustees of the missing person’s estate are required, unless directed otherwise by the court, to insure against any variation orders being made. In a similar vein the beneficiaries of any life insurance policies that pay out as result of a declaration are required to insure themselves against a variation.

20. We understand that in Scotland approximately four to five orders are made each year, and that there has been only one occasion since inception that a missing person has reappeared and applied for the revocation of the order.

21. The Private Member’s Bill, is very closely modelled on the Presumption of Death (Northern Ireland) Act 2009, with certain adjustments for application in England and Wales.

22. It envisages that the time period during which a missing person may “not be known to be alive” will remain seven years, in line with the existing Northern Irish and Scottish legislation, the common law principle and a Council of Europe recommendation. It does however allow for a shorter period in circumstances where the missing person is likely to be dead, for example, disappearance on a time limited expedition.

23. The Bill (as does the Presumption of Death (Northern Ireland) Act) empowers the court to determine any question regarding the property of the presumed deceased at the same point as making the declaration. As any declaration is capable of variation trustees are obliged to take out insurance against that possibility. However, unless there are “exceptional circumstances”, variations of orders made with respect to property can only be made up to five years after the initial declaration. This provision is intended to increase the certainty available to beneficiaries and trustees and could also reduce the cost of the insurance that they would obliged to take.

24. The Bill gives any person the opportunity to intervene in an application for a declaration or an application for the variation of an existing declaration. This right is subject to the leave of the High Court except in the case of close relatives of the deceased.

25. Finally, the Bill provides that the Registrar General should keep a register of Presumed Deaths and that he has an obligation to enter on the register the names of those whom the High Court has declared Presumed Dead. The Bill also obliges the Registrar General to amend the register in response to any variation orders made by the High Court. A certified copy of the entry made in the register would then, by law, be treated as evidence of death, without the need for further proof, and would therefore operate in the same way as death certificates do now.

Is there a need for legislative or procedural change in England and Wales? If so, what form should these changes take?

26. We have discussed above the benefits that we believe would accrue from the creation of a procedure to issues certificates of presumed death, valid for all purposes. We have also discussed a number of different ways in which change could be effected, and concluded that legislative change is to be preferred, for the reasons outlined above.

27. To summarise, our view is that the current system regarding the presumption of death of missing persons is unsatisfactory because of the need to take different court proceedings to address different legal issues, and because, even when such proceedings are followed, ongoing problems and delays result from the reluctance of financial and other institutions to deal in the absence of a formal death certificate.

28. This is inevitably time-consuming and confusing for non-professionals and professionals alike. It is also costly, takes up more court time, and could be avoided if a system of certification and registration were available. Other options for reform do not provide the comprehensive solution that new primary legislation would offer, and, in practice, would tend to complicate or distract from the roles of established institutions and personnel.

29. As far as we understand, the legislation in Scotland has worked effectively since 1977 and has provided a much more satisfactory regime for the families of missing persons and their professional advisors. The Bill attached would, if enacted, provide England and Wales with a similar regime, with some minor adjustments.

30. We would therefore urge the Committee to recommend that new legislation be passed in this area in order to clarify and simplify the legal procedure whereby missing may be persons presumed dead. While the benefits of this will accrue primarily to the families of missing persons and their advisors, it would also be of benefit to other interested parties such as creditors, and, we believe, would be in the public interest more generally.

September 2011