RECLAIMING MOTION THE CITY OF EDINBURGH COUNCIL AGAINST MM
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 50
A314/15
Lord President
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion
THE CITY OF EDINBURGH COUNCIL
Pursuers and Respondents
against
MM
Defender and Reclaimer
Pursuers and Respondents: Pugh; The City of Edinburgh Council Legal Department
Defender and Reclaimer: Party
14 July 2017
Introduction
[1] This is a reclaiming motion (appeal) against the interlocutor of the Lord Ordinary, dated 3 February 2017, granting decree by default in favour of the pursuers by declaring that they have a duty to bury two deceased persons. The issue raised is whether the Lord Ordinary erred in granting that decree.
Legislation
[2] Section 50 of the National Assistance Act 1948 provides:
“50.- Burial or cremation of the dead.
- It shall be the duty of every authority to which this subsection applies to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority.”
Section 9 of the City of Edinburgh District Council Order Confirmation Act 1991 states that a person commits an offence by interring or depositing any human remains (other than the product of cremation) in any place other than a cemetery without the authority’s consent.
[3] RCS 20.1(1)(b) provides that, where a party fails to attend a hearing on the Procedure Roll, that party is deemed to be in default. RCS 20.1(4) provides that, where a defender is in default, the court may pronounce decree.
Background
[4] The defender is the son of EM and HM, who died respectively in 1994 and 1987, both in Edinburgh. The defender is the executor of both of his parents’ estates. In 2002, in connection with an unrelated investigation, the police discovered that the bodies of the defender’s parents had not been buried. They had been embalmed and kept in what seem to have been former shop premises in Gilmour Place. They were removed to the City Mortuary in the Cowgate, where they have remained. Although they were initially held under the directions of the procurator fiscal, he soon declared that they could be released for safe storage in an appropriate location. The pursuers asked the defender about funeral arrangements as early as 28 October 2002. What has happened over the next 8 years is unclear. Since 2010, however, discussions have taken place between the pursuers and the defender about the arrangements for burial. The defender has said that, if the bodies were returned to his premises, he would store them in a refrigerated unit on a temporary basis, whilst an above ground vault is constructed. No further information on any burial plans is averred on record. No plans have been implemented.
[5] The action was raised in April 2015. The open and closed records were lodged respectively in October 2015 and January 2016. On 28 September 2016, the action called before the Lord Ordinary on the Procedure Roll. The defender was not represented and appeared as a party litigant. The pursuers submitted that the defences were irrelevant. The defender moved the Lord Ordinary to discharge the hearing, to open up the closed record and appoint a further period of adjustment. This application was refused.
[6] The Lord Ordinary continued the cause on the Procedure Roll, until 7 November 2016, to allow the defender an opportunity to obtain legal representation. The defender did not attend the continued hearing. He sent a letter to the court dated 30 October, advising that he would be unable to attend due to health problems. He considered that the pursuers had deliberately fixed the date knowing that he would not be able to attend. He was concentrating on medical concerns until 12 January 2017. He had been unable to secure the services of a solicitor in order to secure representation at the hearing. The Lord Ordinary continued the Procedure Roll hearing until 5 December. He ordained the defender to lodge a soul and conscience certificate confirming his problems, under certification that, if he failed to do so, the court would make such order as it thought fit. The defender was also ordained to lodge any written submissions in support of his position.
[7] The defender did not attend the hearing on 5 December. No soul and conscience certificate was lodged. The pursuers moved for decree. The Lord Ordinary continued the hearing once more, to 23 January 2017, under certification that, if the defender failed to appear or be represented, decree may be granted against him. The orders which had been made on 7 November were repeated. The defender accepted, at the hearing of the reclaiming motion, that he had been sent a letter from the court setting out what had occurred on 7 November and intimating the diet of 5 December. He had received this letter on 30 November, but said that he did not open it until after 5 December. On 14 December he wrote a letter to the court explaining why this had happened. He had been suffering from anxiety/panic attacks. The defender did not attend the continued Procedure Roll hearing on 23 January. No soul and conscience certificate was lodged. The Lord Ordinary made avizandum. On 3 February he pronounced decree by default. No explanation was forthcoming as to why the defender had not attended at the hearing on 23 January. He had received intimation of the interlocutor of 5 December on 8 December.
Lord Ordinary’s reasoning
[8] The Lord Ordinary had continued the Procedure Roll hearing on three occasions to allow the defender the opportunity to obtain legal representation, to produce a soul and conscience certificate and to state his position in writing. He concluded that the defender had had ample time and warning to comply with the orders of the court. He considered that it was clear that the defender had had no intention of attending court and had deliberately ignored the court’s requirements.
[9] Nevertheless, the Lord Ordinary considered whether there was any merit in the defender’s case. He would have had “no hesitation” in granting decree in favour of the pursuers. The legislation provided no discretion on the authority, if the conditions set out in section 50 were met (Secretary of State for Scotland v Fife County Council 1953 SC 257, Lord President (Cooper) at 261). The two conditions were that a person had died within the authority’s area and that no suitable arrangements for burial or cremation had, in the local authority’s view, been met. The pursuers had averred that the two conditions had been met. The defences did not challenge the substance of these averments. The bodies had been in the City Mortuary for a significant period of time, and the defender had taken no steps to arrange for their burial.
Submissions
Defender
[10] There were three grounds of appeal. The first was a challenge to the Lord Ordinary’s decision to grant decree by default. The defender explained that he approached his affairs in a systematic fashion and had prioritised the cause for the months of August and September 2016. He had advised the pursuers that he would not be available during a period of eight weeks from October to December. The defender’s basic position was that his failure to attend court on the three occasions had not been deliberate.
[11] The second was a challenge to the Lord Ordinary’s earlier decision to refuse to allow the closed record to be opened up and for a period of adjustment. The defender maintained that he had not had an adequate opportunity to consider the pursuers’ pleadings before the record had closed. Although a closed record had been sent to him, he had not received it, perhaps because it had been stolen in transit. However, the defender explained that, in any event, he had not wanted to dignify the action with a response. His position was that the action was unnecessary and should be settled on the terms which he had proposed.
[12] The third was a challenge to the Lord Ordinary’s reasoning on the merits. The defender founded upon correspondence in 2002, indicating that the procurator fiscal had released the bodies for safe storage in 2002. A letter from the pursuers, dated 28 October 2002, had confirmed that release. If the bodies had been released then, those still in the City Mortuary must be different. In addition, the pursuers had delayed exercising their statutory duty and, as a consequence, their ability to carry out the duty in the section had become unenforceable as a consequence of the passage of time.
Pursuers
[13] The pursuers submitted that the three grounds were without merit. The defender had been afforded ample opportunity to appear at the Procedure Roll hearings or to produce medical certificates. The defender had advanced no basis upon which to interfere with the Lord Ordinary’s decision to grant decree by default. The refusal to allow further time for adjustment had been discretionary. There was no basis to interfere with it. The defender had given no indication of any changes which he wished to make to the pleadings. The Lord Ordinary’s reasoning on the merits had been correct. The defender’s argument, that the pursuers were in some way barred from acting, was contrary to the terms of section 50 of the 1948 Act and, in any event, had not been raised before the Lord Ordinary.
Decision
[14] In relation to the first ground, the medical report, which the court has, reveals that the defender has long-term problems with anxiety and depression. However, there is no indication in the report that he has been or is unfit to attend court hearings, even if it may be difficult for him to do so. The defender has explained why he was not able to attend the hearing on 7 November 2016, although he was aware of it. He explains that he was not aware of the 5 December hearing, simply because he had not collected, or not opened, his mail until afterwards. As already noted, there was no substantial explanation as to why he could not have been present on 23 January 2017, since he had received intimation of that date in the interlocutor of 5 December, which had been delivered to him on 8 December. Although the defender’s account explains why he did not attend the hearings, it does not amount to an excuse for not doing so, thereby avoiding the normal consequence.
[15] On the second ground, the Lord Ordinary gave the defender ample opportunity to explain his position on the merits. No minute of amendment was ever tendered. The Lord Ordinary was entitled, as a matter for his discretion, not to cause further delay by re-opening the record, several months after it had been closed, and allowing a further period of adjustment. In circumstances where it was uncertain whether any amendment would ever be tendered and, if it were, what it would have contained, the Lord Ordinary was almost bound to refuse the defender’s application. The defender’s explanation, that he simply wished to settle the case and did not want to engage in the action, is in itself a sound reason for the Lord Ordinary attempting to press the case to a conclusion.
[16] On the third ground, it was ultimately not suggested that the Lord Ordinary had erred on the merits, on the basis of the existing record. The defender simply maintained that the action was unnecessary because he had made reasonable proposals to the pursuers for burial which involved a temporary storage facility, followed by the construction of a vault. The Lord Ordinary decided the matter, as he was bound to do, on the pleadings. There had been no amendment proposed, nor any narrative given in relation to the bodies, which would have constituted a valid defence. The action is based on the pursuers’ stated view that no suitable arrangements have been made for the burial of these bodies. There is no averment which effectively challenges that view.
[17] Accordingly, the court will refuse this Reclaiming Motion and adhere to the Lord Ordinary’s interlocutor.