The Case of Fairmile Cemetery: A Distinguished Judgment

by Philip Jones

Oxford Consistory Court 2017, published on the internet website of the Ecclesiastical Law Association (accessed 5th May 2017).

This case offers much food for thought (albeit rather hard to digest) on the faculty jurisdiction over exhumation.

The late Mr Miller was buried in Plot 172 of the consecrated municipal cemetery.  Unfortunately Plot 172 had already been reserved by Mr Leventis, who was still alive.  Mr Leventis had reserved Plot 172 because he wanted to be buried adjacently to other members of his family.

The burial of Mr Miller in Plot 172 therefore infringed Mr Leventis’s legal right.  This was entirely the fault of the local authority.  They had mistakenly advertised Plot 172 as Plot 171.  So Mr Miller’s family thought they were burying him in an unreserved space.

Mr Leventis sought a faculty to have Mr Miller exhumed from Plot 172, but the Chancellor refused to grant one.

The facts stated in the judgment suggest that this was probably the right decision.  Although Mr Leventis could not be buried exactly as he had intended, his wish for a close family burial ‘can be approximately satisfied by the acquisition … of alternative plots … in a different configuration’ (para 80).  The contrite local authority ‘have said they will make such vacant plots as there are available to the Leventis family in any configuration they wish’ (para 85).  (They also paid all the legal expenses of the case (para 87)).  If Mr Leventis was still dissatisfied, he could complain to an ombudsman or sue for damages in the secular court. (para 84).  The slight interference with his burial plans did not justify the disturbance of Mr Miller’s remains and the ‘serious distress’ that this would cause to his family, who were entirely innocent of the mistake (para 80).

The Chancellor also rightly held that, though a mistake over burial and infringement of a right of burial are indeed grounds on which the court may grant an exhumation faculty, the court is never obliged to do this.  A faculty is always a matter for the court’s discretion, which depends on the facts of the particular case.  (He might have added that, though the faculty jurisdiction is subject to legal rights, it is not obliged to vindicate legal rights that others have infringed.)

So far, so reasonable.  But the Chancellor was clearly aware that, though exhumation faculties are not inevitable in cases of mistake and infringement of third party rights, they generally are granted in such cases.  Moreover, he himself had recently granted an exhumation faculty in just such a case:  Twyford Cemetery (2015).

This awareness seems to have made the Chancellor excessively anxious to distinguish this case from other cases where exhumation faculties have been granted.  The decision itself is reasonable, but these attempts to distinguish it from other decisions in similar cases are not.  Two false distinctions are made, concerning

(1) the nature of mistake and

(2) opposed and unopposed cases.

(1) The leading case on private exhumation is Blagdon Cemetery (2002) 4 All England Reports 482, in which the Court of the Arches held that ‘a mistake as to the location of a grave can be a ground upon which a faculty for exhumation may be granted … for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else …’ (quoted in para 42)

The Chancellor correctly observed that this dictum ‘does not amount to a rule, or even a presumption, that exhumation will be permitted where a mistake as to the location of a grave has been made’ (para 48).  The language is discretionary (‘can’, ‘may’).  But he went much further: the dictum did not apply to the case at all.

A baffling suggestion.  Surely this is exactly the sort of case to which the dictum applies?  Mr Miller had been buried in the wrong burial plot, which was also reserved for someone else.  There could not be a clearer case of mistake.

The Court of the Arches had gone on to suggest in Blagdon that exhumation faculties in mistake cases ‘amount to correction of an error in administration’, but that the presumption of permanent burial ‘is predicated upon disposal of remains in the intended not in an unintended plot …’.

The Chancellor seized on this last phrase: ‘Mr Miller’s body was buried where his family intended him to be buried … The misdescription of the vacant plot … is not material to that intention’ (para 49).  From this he concluded that ‘This is not … the sort of case identified by the Court of the Arches as being one where faculties can readily be granted’ (para 50).

What does this mean?  That Blagdon only applies where the person seeking the exhumation is the one responsible for the mistake?  Or that it only applies where the mistake concerns the physical location of the burial?

Mr Miller’s family were, of course, not responsible for the mistake.  And the family did intend to bury Mr Miller where they did.  But this intention was vitiated by their ignorance of Mr Leventis’s legal right.  They did not intend to bury Mr Miller in Mr Leventis’s reserved space.  If Mr Levantis’s legal right had been known at the time, Mr Miller would not have been buried where he was.  He was therefore buried in Plot 172 by mistake.  The judgment on this point makes a false distinction, based on an over-analysis of the Blagdon guidance that is strained to the point of perversity.

(2) The exhumation of Mr Miller’s remains was, understandably, opposed by his family.  Most private faculties (like most faculties in general) are unopposed, and they usually concern only the deceased person’s relatives, not third parties.

The Chancellor saw this opposition as a further distinction from Blagdon.  He asserted that ‘Blagdon does not provide any guidance as to how petitions where exhumation is opposed should be dealt with’ (para 48).  He continued: ‘where the Court of Arches addresses cases of mistake [in the Blagdon guidance] it is concerned with cases where exhumation is carried out … with the support of the family of the deceased’ (para 51).

He therefore turned to the Victorian case of Dixon (1892) Probate 386, where the court held that exhumation may be permitted

‘[1] on the application of members of the family, for reasons approved of by the court, or

[2] upon the application of other parties upon the ground of necessity or proved public convenience …’ (quoted para 51).

On the basis of this supposed authority the Chancellor held that, because ‘it is ‘other parties’ [i.e Mr Leventis] who apply for the faculty the test would seem to be a higher one than that which applies where the application is made by … the [Miller] family’.  Mr Leventis would have to show necessity or public convenience, not a mere private right.

It is true that Blagdon was unopposed.  But so was Dixon.  In that case the deceased’s widow was evidently an enthusiast for the then novel practice of cremation.  She wished to exhume her late husband (who had died 18 years earlier) in order to cremate him, so that his ashes could be mingled with hers when the time came.  A faculty was refused.

It should be fairly obvious from this context that the dictum about ‘other parties’ did not refer to a disputed private exhumation.  It referred to public exhumation, i.e cases where exhumation is sought in order to facilitate some development (e.g enlargement of the church, road-widening, reordering of the churchyard).  It was not addressed to the dispute in this case.

In Blagdon, the case which the Court had to decide was unopposed.  However, the guidance that it gave along with its decision was addressed to opposed and unopposed private exhumations alike.

In the published report, the Blagdon guidance is entitled ‘Exhumation: General Principles’ (above para 18).  This hardly suggests that it is limited to unopposed cases.  On the contrary, it is general guidance.  Moreover, the guidance does contain at least one explicit reference to opposed exhumation:

‘we do not regard it as persuasive that there is particular support for an unopposed petition any more than support for a contested petition of this nature would affect the decision on the merits of the petition’ (para 36).

An opposed case will require a more onerous procedure, and is likely in practice to receive closer scrutiny than an unopposed case.  However, there is no reason of principle why opposition to a private exhumation should per se affect the substantive final decision on the case.  Why should two dead bodies be treated differently just because one is the subject of a dispute and the other is not?

As well as the 2 false distinctions, the judgment contains exaggerations introduced to justify the decision.  The Chancellor was understandably influenced by the fact that Mr Miller had been buried with Anglican rites and that his family were practising Christians (para 62), and less impressed by Mr Leventis’s clannish desire to be buried with his family (paras 64-68).  He emphasised the finality of Christian burial (paras 58-61).  However, he went too far in holding that ‘To exhume and relocate [Mr Miller’s] body now would be contrary to the Christian belief of the family’ (para 62).  There is no such Christian belief.  The fact that ecclesiastical courts regularly permit exhumation demonstrates this.

The Chancellor also found Mr Leventis guilty of ‘undue delay’ in applying for Mr Miller’s exhumation.  ‘Approximately a year’ passed between his awareness that his reserved plot had been taken by Mr Miller and the lodging of the faculty petition (para 69).  This may be rather harsh, as secular courts allow as long as 12 years for claimants to assert their proprietary rights.

However, as we noted earlier, the faculty jurisdiction is not concerned with the vindication of legal rights.  The Chancellor cited Watson v Howard, aka St. Luke, Holbeach (1991) 1 Weekly Law Reports 16 (para 55).  The decision to permit exhumation in that case seems to have been taken according to equitable criteria.  Mrs Watson had acted promptly in asserting her right to the burial plot, and had not acted unreasonably in declining alternative arrangements for her burial.