THE CITY OF EDINBURGH COUNCIL AGAINST MELVYN MARCEL
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 15
A314/15
OPINION OF LORD MULHOLLAND
in the cause
THE CITY OF EDINBURGH COUNCIL
Pursuer
against
MELVYN MARCEL
Defender
Act: Pugh; City of Edinburgh Council (Legal)
Alt: Party
3 February 2017
Introduction
[1] This is an application for decree de plano (for the benefit of the defender who is unrepresented it means immediately, without a further hearing) for an order in terms of section 50 of the National Assistance Act 1948 for authority to bury two individuals, namely Eugenois and Hilda Marcel, the deceased parents of the defender.
The Circumstances as set out in the Pleadings
[2] The circumstances as set out in the pleadings are that the defender is the son of Eugenois and Hilda Marcel. Eugenois was born on 3 June 1903 and died on 31 August 1994 in Edinburgh. Hilda Marcel was born on 26 March 1918 and died on 10 February 1987 in Edinburgh. The defender has confirmed to the pursuer that he is the executor of the estates of Eugenois and Hilda Marcel (condescendence 1). In or around May 2002 following a police investigation into matters not directly related to the present action, it was discovered that the bodies of Eugenois and Hilda Marcel had not been buried following their deaths. The defender was spoken to and it was ascertained that the bodies were stored within premises at Gilmour Place, Edinburgh. The bodies were removed from Gilmour Place to the City Mortuary where they are currently stored. They are embalmed (condescendence 2). In answer 2 the defender accepts that they (the police) chose to remove them (the bodies) from the defender’s premises at Gilmour Place. The procurator fiscal was made aware of the discoveries and conducted an enquiry into the circumstances in which the bodies came to be stored within the premises at Gilmour Place, Edinburgh. No proceedings were brought and as confirmed in a letter from the procurator fiscal (October 2012), produced to the court by the defender, the bodies could be released for burial or cremation. Condescendence 3 states that since October 2012 the pursuers have been discussing the burial of the deceased with the defender. The defender admits that the discussions have been taking place since 2010 and no charges against him had been brought “thereby vindicating the defender and his advisors right to have them stored where they were…”. Condescendence 3 continues that as at August 2014 the defender has not put in place suitable arrangements for the burial of the bodies. The defender admitted that arrangements had not been put in place under explanation. In condescendence 5 the pursuer narrates that the defender has indicated his intention to build a refrigerated unit within his residential property within which the bodies will be stored. This is a temporary measure until an above ground vault is built to house the bodies. No further information on these matters has been provided to the pursuers. The pursuer understands that the defender’s intention ultimately is to have the bodies of his parents transferred to the West Bank in Gaza for burial.
The Relevant Law
[3] Section 50 of the Act is as follows:
“50.— Burial or cremation of the dead.
(1) 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.
(2) The authorities to which the last foregoing subsection applies are the councils of [districts and London boroughs and the Common Council of the City of London] 1[...] 2, and in Scotland [councils constituted under section 2 of the Local Government etc. (Scotland) Act 1994] 3 ……
(6) Nothing in the foregoing provisions of this section shall affect any enactment regulating or authorising the burial, cremation or anatomical examination of the body of a deceased person; and an authority shall not cause a body to be cremated under this section where they have reason to believe that cremation would be contrary to the wishes of the deceased.”
The section therefore sets out two conditions, firstly, that the persons must have died or their bodies been found in the local authority area, and secondly, that no suitable arrangements for the disposal of the bodies have been or are being made. It is noted that, in view of the defender’s religion, cremation is not appropriate.
[4] The basis of the pursuer’s motion is that the defender’s pleadings are irrelevant in respect of the issues set out in section 50, there being no answer to the pleadings relevant to the conditions set out in section 50. In particular, there are no contrary averments to the effect that the defender’s parents died or their bodies were found within the local authority area and secondly, there are no averments to suggest otherwise than that no arrangements have been made or are being made for the burial of the bodies of the defender’s parents. It was submitted by counsel for the pursuer that the defender’s pleadings do not take issue or contradict the pursuer’s averments and, on that basis, decree should be granted.
Motions made by the Defender
[5] The defender who was unrepresented during the hearing, during his response to the submissions by the pursuer’s counsel, moved the court to discharge the pursuer’s case in order that the record be opened up so that the defender could adjust his pleadings to respond to the points made by the pursuer’s counsel in his submissions. In support of this it was said that the pursuer’s relevant plea in law was submitted at the end of the adjustment period and that the defender did not have sufficient time to answer it. In response the pursuer’s counsel pointed out that the plea in law was itself based on the defender’s answers. It was a plea in law and not averments of facts and circumstances.
[6] I refused the motion. It came very late in the hearing and there was no real basis for it, given the ample time which was available for the defender to respond to the pursuer’s statements in the record. I gave due consideration to the fact that the defender is unrepresented.
[7] The defender then made a further motion to continue the hearing in order that he could obtain legal representation. I granted this motion to allow the defender this opportunity. I made it clear to him that this was for the purpose of obtaining, or at least attempting to obtain, fresh legal representation. I say fresh legal representation as it was clear from the defender’s submissions that he had been legally represented in the past. As he himself said his legal representatives withdrew from acting for him, although no reason was given for this to me. The hearing was continued to 7 November 2016.
[8] On 7 November the defender did not appear. He submitted a letter indicating that he was unfit to attend and would not be fit until around 12 January 2017. The hearing was continued to 5 December 2016 ordering the defender to lodge a soul and conscience certificate, or other independent medical evidence confirming his unfitness to attend, and any further written submissions in support of his case. On 5 December 2016 the defender did not attend and no certificate or independent medical evidence was provided vouching for his unfitness. The pursuer moved the court to grant decree by default in terms of RCS 20.1 but I refused this motion instructing the clerk to write to the defender stressing upon him the need either to attend or produce a soul and conscience certificate, or other form of medical report or certificate vouching for his unfitness to attend. The offer to make further written submissions in support of his case was reiterated. The hearing was continued to 23 January 2017 for this purpose (to a date after 12 January 2017 when the defender should be well enough to attend). On 23 January 2017 the defender again failed to attend and no soul and conscience or other form of medical report or certificate was produced. No written submissions in support of his case were lodged. A letter was lodged but it did not deal with any of these points. The pursuer renewed his motion to grant decree by default. I take the view that the defender had had ample warning and time to produce the medical certificates or reports requested but had not done so. It is clear to me that the defender had no intention of attending and was deliberately ignoring the court’s requests. I therefore grant the motion. Had I required to reach a decision on the merits, given the submissions I had before me, I would have had no hesitation in granting decree for the following reasons.
Decision on the Merits
[9] In the case of Secretary of State for Scotland v Fife County Council 1953 SC 257 the Court (Inner House) held that the application of the legislation provides no discretion on the part of the Local Authority if the conditions set out in section 50 are met (see the Opinions of Lord President Cooper at page 261 and Lord Keith at page 263). In this case the Local Authority has a statutory duty to dispose of the remains if two conditions are met. The pleadings are clear in respect that the pursuer’s pleadings set out facts and circumstances to the effect that the conditions in section 50 are met. The defender’s answers read as a whole, taking due recognition of the fact that he is unrepresented, do not challenge the council’s pleadings on these issues. Therefore, even if the defender proved his averments, the conditions in section 50 would still be met and the council would therefore have a statutory duty to bury the defender’s parents. It should be noted that the bodies of the defender’s parents have been in the City Mortuary for many years, no doubt at some cost to the City of Edinburgh at a time when the public purse is under significant constraint. I should also point out that the continuations afforded to the defender (a period of about four months) afforded him time to make his own arrangements for burial of his parents. He has not taken up this opportunity and vague suggestions during his submissions (and in the pleadings and correspondence) that he intended to apply for planning permission for a mausoleum to house his parent’s bodies did not seem to me to be realistic or anything more than a vague statement of intent. He has had ample opportunity to make arrangements to dispose of his parent’s bodies in accordance with his and his family’s wishes. In these circumstances, on the merits, I would have granted authority to the City of Edinburgh Council to undertake their statutory duties in the disposal of the bodies of the defender’s parents.
[10] I therefore grant decree by default and sustain the pursuer’s first and second pleas in law, and repel the pleas in law for the defender.
[11] I should add that it would be helpful, although I cannot compel it, if the City of Edinburgh Council, in carrying out their statutory duty, would give due consideration to any realistic requests made by the defender and his family as to the arrangements for disposal of his parent’s bodies. It is appropriate that the families’ wishes in this regard, if they have any, are considered. It is important that the City of Edinburgh Council undertake their statutory duties sensitively and with respect, as I am sure they will do.