In Good Order: Deaths, Disputes and Default Rules

By Dr Joanna McCunn, Lecturer in Law (University of Bristol Law School) and Dr Andrew J Bell, Research Assistant (Institute for European Tort Law of the Austrian Academy of Sciences and University of Graz, Vienna).

Shipwrecks were a common cause of commorientes cases.

The ‘extraordinary’ recent case of Scarle v Scarle[1] has brought national press attention to a property law rule dating from 1925. Though little-known and seemingly bizarre in application, the rule stands atop millennia of legal thinking and is a useful and pragmatic tool for solving this instance of an unusually challenging evidential problem. This problem, of intractable uncertainty, occurs across the legal system, and the various rules used to address it can have surprisingly extensive policy benefits.

Scarle v Scarle

John and Ann Scarle were discovered dead at their home, having both succumbed to hypothermia under mysterious circumstances. It became vital to know which of the two had died first. If Ann had outlived her husband, she would have inherited the whole of their jointly owned property; if Ann had died first, it would have passed to John. Dispute arose because each of the spouses was to be succeeded by a daughter from a previous relationship; each daughter thus stood to inherit all or nothing from her parent.

The dispute coalesced around a presumption known as the ‘commorientes rule’. Found in section 184 of the Law of Property Act 1925, this provides that, where it is uncertain which of two or more persons has outlived the other(s), a younger person is deemed to have survived an elder.[2] While the rule itself is clear, it has been unclear what kind of ‘uncertainty’ is required for the rule to apply. Does a sequence of deaths have to be proven beyond reasonable doubt to avoid the presumption (the criminal law standard), or only on the balance of probabilities (the civil standard)?

HHJ Kramer decided that the ordinary civil standard applied: the commorientes rule is only engaged when it cannot be proven on the balance of probabilities (i.e. >50% probability) which person survived longer. In Scarle, however, even that hurdle was not met. The evidence as to the order of deaths was too equivocal and section 184 therefore kicked in: Ann Scarle was younger than, and so taken to have outlived, her husband. Her daughter inherited everything. (more…)

European Union (Withdrawal) Bill: Paving the way towards a very uncertain future

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

The stated aim of the, then Great, Repeal Bill was to provide clarity and certainty for citizens and businesses, and to ensure a functioning statute book on exit from the EU. The key statement of principle in the White Paper was as follows: ‘In order to achieve a stable and smooth transition, the Government’s overall approach is to convert the body of existing EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once we have left the EU. This ensures that, as a general rule, the same rules and laws will apply after we leave the EU as they did before’ (for analysis, see here).

However, the continuity provided by what is now the European Union (Withdrawal) Bill, published last week, must be seen in the context of the reality that leaving the EU will also require major constitutional and policy changes in a relatively short, and currently uncertain, time frame (see here). After all, the Government’s aim is that, as a result of Brexit, the UK will be able to decide which parts of EU-derived law to keep, and which to amend or repeal. A number of Brexit Bills, which will change the law in relation to, among others, immigration, trade, customs, agriculture and fisheries, were promised in the Queen’s speech. The clarity and certainty promised in the White Paper, which at first glance appear to provide comfort to citizens and businesses concerned over the effects of Brexit, are more elusive than ever. (more…)