Mr and Mrs King had – under Article 10 of the Local Authority Cemeteries Order 1977 – been granted an exclusive right of burial in a particular plot in Twyford Cemetery, a consecrated burial ground owned and operated by the civic parish council. The plot had been chosen by them because it was adjacent to the grave of their son, who had predeceased them. Subsequently, as a result of an error by the parish clerk when communicating with funeral directors, the body of Mrs Watkins was buried in the plot granted to Mr and Mrs King. The mistake was discovered some months later when a member of the King family visited the grave of Mr and Mrs King's son. After failed attempts at mediation, Mr and Mrs King petitioned the court for a faculty to authorise the exhumation of the body of Mrs Watkins and its re-burial in a different plot. Family members of Mrs Watkins objected to the proposed exhumation and became parties opponent to the petition.

The chancellor considered Re Blagdon Cemetery [2002] Fam 299 and what was said there about faculties being readily granted in cases where burial had taken place in a space reserved for someone else on the basis that this amounted to a correction of an error in administration rather than exception to the presumption of permanence. However, Blagdon did not provide any guidance as to how opposed petitions should be dealt with. The chancellor observed that there had not been any significant lapse of time between the burial and the submission of the petition. It was clear that both families faced distress and anguish as a result of the error that had been made and causing further distress to one or other of the two families could not be avoided in determining the petition. The most weighty factor was the legal position. The accidental allocation of the plot for the burial of Mrs Watkins and her burial there amounted to a breach of a legally enforceable right that had been lawfully granted to Mr and Mrs King under the Local Government Act 1972 and the 1977 Order. Article 10(6) of the 1977 Order expressly prohibited the burial of any body in a grave in respect of which an exclusive right of burial had been granted except with the consent of the owner of the right. As a matter of law, all that the petitioners were doing was seeking to secure a right that legally belonged to them. There was nothing to suggest that they were doing so other than from entirely proper motives. Judgment was accordingly given for the petitioners. Twyford Parish Council was ordered to pay the court costs and the expenses incurred by the parties opponent in connection with the hearing and the re-interment of Mrs Watkins. [Alexander McGregor]