The deceased, one of the infamous Moors murderers, died in a high security psychiatric hospital in the area of the third defendant, a local authority. He appointed the first defendant, a solicitor, as his executor. The claimants were concerned that the first defendant had failed to make proper arrangements for the disposal of the remains of the deceased, nearly five months after his death, and they sought an order appointing an administrator of the deceased’s estate under section 116 of the Senior Courts Act 1981 for the limited purpose of disposing of the body of the deceased, alternatively, that directions be given as to the disposal of the deceased’s remains, alternatively, a declaration that the third defendant was obliged and entitled to cause the deceased’s body to be buried or cremated pursuant to section 46(1) of the Public Health (Control of Disease) Act 1984.
On the claim and the questions whether: (i) section 46 of the 1984 Act had been triggered; (ii) the court had jurisdiction to make a partial administration order under section 116 of the 1981 Act in favour of someone other than the first defendant on the grounds that special circumstances existed and it appeared to the court to be necessary or expedient to do so; and (iii) whether the court could give detailed directions as to the disposal of the deceased’s remains either under its inherent jurisdiction or under section 116—
Held, claim allowed. (1) For section 46 of the 1984 Act to be triggered it must in the present case appear to he third defendant that no suitable arrangements for the disposal of the deceased’s body had been or were being made otherwise than by the third defendant. There was no real doubt what the section meant by “appearing to”. It meant that the third defendant must have formed that view. The court could not accept the claimants’ submission that simply because a reasonable time had elapsed, it must appear that no suitable arrangements were being made, whatever its actual view. The third defendant thought its duty under section 46 had not yet been triggered, envisaging that it might in future appear to it that no suitable arrangements were being made, but that was not the present position, because of its ongoing dealings with the first defendant. The third defendant’s view had to prevail. The duty under section 46 had not been triggered (paras 66, 67, 69).
(2) Special circumstances existed. The deceased was someone described by Lord Steyn as “uniquely evil”, there was real and genuine public anger and distress about what might happen to the deceased’s body, the families of the deceased’s victims might well be legitimately offended by an insensitive disposal, there was a real public interest in ensuring that the disposal did not cause unrest or disorder and there was a public policy requiring that any body should be disposed of decently and lawfully with due despatch. The reality was that, in the absence of a satisfactory outcome to the proceedings, there was a distinct prospect that the deceased’s body might remain undisposed of for a further significant period of time, something that the court could not contemplate. It was both necessary and expedient for the matter to be taken out of the first defendant’s hands if the deceased’s body was to be disposed of quickly, lawfully and decently. Circumstances existed where the court could and should make an order for an administration of the deceased’s estate under section 116 of the 1981 Act limited to the disposal of the deceased’s body (paras 74, 75, 76).
(3) The court had an inherent jurisdiction to direct how the body of a deceased person should be disposed of. The court would normally decide between the competing wishes of different sets of relatives, and would only need to decide who should be responsible for disposal rather than what method of disposal should be employed but its inherent jurisdiction over estates was sufficiently extensive to allow it, in a proper case, to give directions as to the method by which a deceased’s body should be disposed of. The overwhelming factor in the present case was the public interest. In the extremely unusual circumstances of the case the court would direct precisely how the deceased’s body was to be disposed of (paras 80, 84).
In re Grandison The Times, 10 July 1989; Hartsthorne v Gardner [2008] EWHC 3675 (Ch), Burrows v HM Coroner for Preston [2008] 2 FLR 1225; Anstey v Mundle [2016] WLTR 931 and In re JS (A Child) (Disposal of Body: Prospective Orders) [2017] 4 WLR 1 considered.
Nigel Giffin QC (instructed by Hill Dickinson llp) for the claimants.
Richard Moore (instructed by E Rex Makin & Co, Liverpool) for the first defendant.
Debra Powell QC (instructed by DAC Beachcroft llp) for the second defendant.
Louis Browne QC (instructed by Sefton Metropolitan Borough Council) for the third defendant.