Thursday, September 14th, 2017

City of Edinburgh Council v MM [2017] CSIH 50

Richard Pugh of Compass Chambers appeared for the pursuer/respondent in this Reclaiming Motion heard by the First Division of the Inner House.

Background Facts

The defender was the executor of both of his deceased parents’ estates. They had passed away in 1994 and 1987. It was discovered that the bodies of the defender’s parents had not been buried. They had been embalmed and kept in former shop premises before being removed to the City Mortuary, where they remained.  The pursuer was the local authority with responsibility for burial. Since 2010 discussions had taken place between the parties about arrangements for burial.  The defender had 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 was constructed. 

At first instance

On 28 September 2016, the action called on the Procedure Roll.  The defender was not represented and appeared as a party litigant. The pursuer 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. Thereafter, the cause was continued to allow the defender an opportunity to obtain legal representation.  

The defender did not attend the continued hearing.  He advised by way of written correspondence he would be unable to attend due to health problems. 

The Procedure Roll hearing was further continued and the defender was ordained to lodge a soul and conscience certificate, 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. 

The defender failed to attend the continued hearing and no submissions or soul and conscience certificate were lodged.

The hearing was continued one further time to 23rd January 2017 once more under certification that, if the defender failed to appear or be represented, decree may be granted against him.  The defender did not attend the continued Procedure Roll hearing. No soul and conscience certificate was lodged.  

The Lord Ordinary made avizandum and pronounced decree by default declaring that the pursuer has a duty to bury the defender’s parents. No explanation was forthcoming as to why the defender had not attended at the hearing on 23 January.  He had received intimation of the hearing.

Reclaiming motion

The defender sought to challenge:

(1)   The decision to grant decree by default, his basic position being that his failure to attend Court had not been deliberate;

(2)   The decision to refuse to allow the closed record to be opened up 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. He had not received a closed record, perhaps because it had been stolen. In any event, he had not wanted to dignify the action with a response.  He believed the action was unnecessary and should be settled on the terms which he had proposed; and

(3)   The Lord Ordinary’s reasoning on the merits.  The Lord Ordinary had found he would have “no hesitation” in granting decree in favour of the pursuer, as the relevant legislation (National Assistance Act 1948) provided no discretion on the pursuer, if the conditions set out in s.50 of the Act were met. The two conditions were that a person had died within the authority’s area and that no suitable arrangements for burial or cremation had been met.  The pursuer had averred that the two conditions had been met.  The defences did not challenge the substance of these averments.  

The defender’s position, founding on correspondence from 2002 indicating that the procurator fiscal had released the bodies for safe storage at that time, was that if the bodies had been released then those still in the City Mortuary must be different; and the delay in the exercise of the pursuer’s statutory duty rendered their ability to carry out the duty unenforceable.

The pursuer 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. 


In relation to the first ground, the Court found there was no substantial explanation as to why the defender could not have been present at the hearing on 23 January 2017, since he had received intimation of that date. Whilst the defender was able to provide an explanation as to his failure to attend some of the hearings, that did not amount to an excuse for not doing so, and so did not assist in his avoiding the normal consequence for not doing so. 

On the second ground, it was found the Lord Ordinary gave the defender ample opportunity to explain his position on the merits.  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, was in itself a sound reason for the Lord Ordinary attempting to press the case to a conclusion.

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 was based on the pursuer’s stated view that no suitable arrangements had been made for the burial of the bodies.  There was no averment which effectively challenged that view.

The reclaiming motion was refused.

A copy of the decision can be found here.

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