NCA’s Annual Report 2019-20: a focus on recovering the proceeds of crime and asset denial
This week His Honour Judge Kramer handed down his judgment in the case concerning Mr and Mrs Scarle.
The court was asked to consider the question as to which of them had died first in October 2016, after they were both found dead at their bungalow in Essex. This was important because Mr and Mrs Scarle owned the bungalow jointly, together with a joint bank account. If Mr Scarle had died first, then his share of the jointly held assets would have briefly passed to his wife. When she died, the property would then pass to her children. But if Mrs Scarle had died first, her share would have briefly passed to her husband, and then on to his daughter when he died. You can read more about the factual background to the case here.
The central issue in the case was the operation of section 184 of the Law of Property Act 1925. This provides that, where the order of death is uncertain, there is presumption that the deaths occurred in order of seniority. None of the parties could say with any certainty which of Mr and Mrs Scarle had died first. Mrs Scarle’s daughter argued that therefore the s.184 presumption applied and it should be presumed that Mr Scarle had died first as he was the oldest. Mr Scarle’s daughter argued that the presumption in s.184 would not be engaged if she could prove, on the balance of probabilities, who had died first. However her opponent also argued that, in order for the presumption not to apply, a higher standard of proof than the balance of probabilities was required.
HHJ Kramer considered the latter issue first. He considered the position before the enactment of s.184 and the case law that had led to the introduction of that provision. He also considered the case law relied on by Counsel but concluded that the correct standard of proof to be adopted, where the sequence of deaths is uncertain, is the civil standard; that is, the balance of probabilities.
HHJ Kramer also confirmed that where the order of death is uncertain, the burden of proof is on the party who seeks to establish otherwise. He made clear that the particular facts and circumstances of a case would determine the extent and quality of the evidence required in order to discharge the burden of proof. In the case of Mr and Mrs Scarle, where very little was known about the immediate events surrounding the deaths, the court had to be “careful to ensure that it is safe to draw inferences from the evidence available”. Just because one of many inferences might be drawn from a set of facts, the court could not conclude that that inference is the most probable, without having some evidential basis for rejecting the others.
This led HHJ Kramer to consider the facts of the present case and the evidence which had been presented to the court. He had heard evidence from witnesses, seen the documents from the Essex Police investigation into the deaths, seen medical records and received reports from the post-mortem examinations and expert reports from forensic pathologists instructed by the parties. However he still considered that in this case “the facts surrounding the deaths are equivocal and the picture incomplete even when considered in conjunction with the evidence of the pathologists”.
HHJ Kramer stated that “the only evidence which has the potential to provide reliable inferences is that produced by the forensic pathologists”. It was agreed between the parties that whilst both bodies were at an early stage of decomposition when they were found, Mrs Scarle was substantially further on in that stage. The experts instructed by the parties had agreed that if the temperature and environmental conditions within the two different rooms in which Mr and Mrs Scarle were found were equivalent, it was more likely than not that Mrs Scarle had died before her husband. So the judge therefore went on to consider the evidence relating to the likely temperature of the respective rooms. He concluded that there were “too many variables and unknowns to come to a safe conclusion as to the relative temperatures” of the two rooms.
Finally, he noted that there were two “not improbable explanations” for the fact that the decomposition of Mrs Scarle’s body was more advanced than that of her husbands. Those were (1) that Mrs Scarle had died first and (2) that the micro-environment of the area where Mrs Scarle was found was warmer than the area in which Mr Scarle was found, which would have speeded up the decomposition. Because HHJ Kramer did not have evidence which enabled him to discount the latter, he could not fairly draw the inference that it was the former.
In all the circumstances, the order of death remained uncertain and the s.184 presumption was not disengaged, as the claimant had failed to prove otherwise on the balance of probabilities (the civil standard). Accordingly the presumption of death in order of seniority under s.184 was applied, and Mr Scarle was presumed to have died first. The judge’s conclusion is perhaps not surprising, given the sad circumstances of Mr and Mrs Scarle’s deaths. Whilst there were several possible alternative explanations for what had happened to them, there were simply too many variables to come to any safe conclusion. Whilst thankfully this kind of situation is rare, s.184 ‘steps in’ to remove practical difficulties in the administration of estates where it is not possible to ascertain the succession of deaths.
My colleague, Jim Sawer, has written a blog which discusses how this case highlights the importance of having a will and why married couples, especially those in second marriages, should have a joint approach when making their wills. This is available to read here.
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