Son loses legal battle with council over burial of mummified bodies of parents

Melvyn Marcel delayed the burial of his mother Hilda and father Eugenios and stored their bodies until he could build a mausoleum in the grounds of his Edinburgh property, but the remains were removed to the city mortuary.

The Inner House of the Court of Session upheld a decision of the Lord Ordinary to grant an application by Edinburgh City Council for a decree by default for authority to bury the bodies after Melvyn failed to attend court hearings.

Police investigation

The court heard that in 2002, following a police investigation into matters not directly related to the present action, it was discovered that the bodies of Hilda and Eugenois – who died in 1987 and 1994 respectively – had not been buried.

The defender, the executor of his parents’ estates, was spoken to by officers and it emerged that the bodies had been embalmed and stored within former shop premises in Gilmour Place.

The embalmed bodies were removed to the city mortuary, where they remained.

Following an inquiry by the Crown Office no proceedings were brought and the procurator fiscal confirmed that the bodies could be released for burial or cremation.

Since 2010 then the pursuers had been in discussions with the defender over the burial of the deceased, but he failed put in place suitable arrangements for their disposal.

The defender had indicated that if the bodies were returned to him he would build a “refrigerated unit” within his residential property within which the bodies could be stored as a “temporary measure” until he built an “above ground vault” to house the remains.

Decree de plano

After the defender failed to appear at several continue procedure roll hearings, the council sought decree de plano for an order for authority to bury the bodies in terms of its statutory duty to dispose of remains if two conditions set out in section 50 of the National Assistance Act 1948 are met: 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.

The Lord Ordinary had continued the hearing on three occasions to allow the defender the opportunity to obtain legal representation, to produce a soul and conscience certificate and to state his position in writing.

He concluded that the defender had had ample time and warning to comply with the orders of the court, adding that it was clear that the defender had had no intention of attending court and had deliberately ignored the court’s requirements.

Nevertheless, the Lord Ordinary considered whether there was any merit in the defender’s case, but said he would have had “no hesitation” in granting decree in favour of the pursuers.

Grounds of appeal

The defender lodged three grounds of appeal; the first being a challenge to the Lord Ordinary’s decision to grant decree by default, on the basis that his failure to attend court on the three occasions had not been deliberate.

The second ground was a challenge to an earlier decision by the Lord Ordinary’s to refuse to allow the closed record to be opened up and for a period of adjustment, on the basis that the defender had not had an adequate opportunity to consider the pursuers’ pleadings before the record had closed.

Although a closed record had been sent to him, he had not received it, but the defender explained that, in any event, he had not wanted to dignify the action with a response as he considered it “unnecessary” because it should be settled on the terms which he had proposed.

The third ground of appeal was a challenge to the judge’s reasoning on the merits.

Delivering the opinion of the court, the Lord President said: “In relation to the first ground, the medical report, which the court has, reveals that the defender has long-term problems with anxiety and depression. However, there is no indication in the report that he has been or is unfit to attend court hearings, even if it may be difficult for him to do so… Although the defender’s account explains why he did not attend the hearings, it does not amount to an excuse for not doing so, thereby avoiding the normal consequence.

“On the second ground, the Lord Ordinary gave the defender ample opportunity to explain his position on the merits. No minute of amendment was ever tendered. 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, is 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 is based on the pursuers’ stated view that no suitable arrangements have been made for the burial of these bodies. There is no averment which effectively challenges that view.”