Bayes- Walker & Anor v Bayes- Walker & Ors [2010] EWHC 3142 (Ch) (02 December 2010)

Neutral Citation Number: [2010] EWHC 3142 (Ch) Case No: HC 10C02035 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION Royal Courts of Justice Strand, London, WC2A 2LL 2/12/2010 B e f o r e : MR JUSTICE WARREN ____________________ Between: (1) CHRISTOPHER DAVID BAYES-WALKER (2) JAMES WILLIAM BAYES-WALKER Claimants - and - (1) DAVID STUART BAYES-WALKER (2) AVIVA LIFE & PENSIONS UK LIMITED (3) AEGON ASSET MANAGEMENT UK LIMITED Defendants ____________________ Richard MacMillan of Wilkinson Chapman LLP instructed in this matter by the Claimants ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Mr Justice Warren : Under English law, there is a rebuttable presumption of death of a person after 7 years where those who would be likely to have heard of him have not in fact heard of him. However, it is necessary also that all due enquiries have been made suitable to the circumstances before the presumption arises. For a succinct statement of the position see para 1100 Vol 20 Halsbury's Laws of England (4 th ed). It is not appropriate to make a general declaration having effect for all purposes that a person is dead, or is to be presumed dead. The court can, however, make orders on the footing that a person is dead. The evidence before the court consists of statements from the most important of those people who would be likely to have heard from the first defendant ("DB-W"); none of them has done so. They include DB-W's former wife, now Hayley Pointer (who has provided a signed consent to an order being made), DB-W's mother and father, the claimants (the sons of DB-W and HB-W), the godfather and godmother of the second claimant being friends of DB-W and a paternal aunt of DB-W. They all give evidence about their last contact with DB-W before his disappearance in September 2002. The evidence from DB-W's father includes reference to a phone message left on his answering machine by DB-W in late September 2002.. The substance was that he was in a town in Israel which is known for diving, his hobby and that his father "was not to worry". He asked his father to phone his Unit in Cyprus (DB-W was a Sergeant in the RAF) to tell them he was "OK". It appears from his father's evidence that DB-W had taken a flight from Cyrpus to Cairo but the Military Police were unable to locate him. Hayley Pointon explains that although the marriage was in some difficulty in 2001, DB-W kept in touch and visited the children. He had told her before his disappearance that he was being posted to RAF Cranwell and that he would visit the family on 23 September 2002. That day, he phoned her to say that he was at the airport in Cyprus and that he was about to fly to RAF Brize Norton. She has not seen or heard of him since. She relates that she has been informed by the RAF that DB-W told his colleagues that he was attending a Mess lunch that day but instead took a flight to Cairo. He stated, on an Egyptian entry card, that he had booked into a hotel in Cairo, but he never checked into the hotel. Hayley Pointon states that she has made extensive enquiries of: a. The RAF; b. British Forces Cyprus; c. The MoD; d. The British Embassy in Cairo; e. The Egyptian Embassy; f. The Israeli Embassy; g. DB-W's family mentioned above; h. The godparents mentioned above. None of these organisations or individuals have any knowledge of DB-W's whereabouts. Hayley Pointon has since divorced DB-W and remarried. Communications from the RAF in July 2003 disclosed that an enquiry had decided that DB-W was Absent Without Leave; he was charged with that offence in his absence. More recently, in March 2010, the RAF confirmed that it has had no official contact with him. On 10 August 2010, the Master made an order for substituted service on DB-W, an order no doubt designed to ensure so far as possible that, if he were still alive, notice of the proceedings would come to his notice.. In accordance with that Order, an advertisement was placed in the Jerusalem Post on 3 September 2010 giving notice that the claim had been made and giving the details necessary for making an acknowledge of service. No response has been received following that advertisement. In all the circumstances, I consider that due enquiries have been made suitable to the case. It is therefore right, for the purposes of defining rights as between the claimants and Hayley Pointon on the one hand and the second and third defendants on the other hand, that DB-W should be presumed dead. This means that the policy taken out by DB-W in the name of himself and the second Defendant and held on trust of the claimants and certain units held by the third Defendant in the name of DB-W should be dealt with as though he were DB-W were dead. Accordingly, I am prepared to make a declaration that, as between those parties and for the purpose of the policy and the units, DB-W is to be presumed to have died. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII