As a result of an administrative error on the part of a burial authority, the body of Victor Miller was buried in a plot in the consecrated part of a cemetery in respect of which another individual had already acquired an exclusive right of burial. Exclusive rights in respect of that and three other adjacent plots had been acquired by different members of the Leventis family to comply with the wishes of the late Constandinos Leventis that his family members be buried together in a square formation. Approximately one year after the Leventis family discovered that Mr Miller had been buried in one of the plots, Mr Leventis’ son petitioned for a faculty to exhume Mr Miller's body and for its re-interment elsewhere in the cemetery. The widow and daughters of Mr Miller opposed the petition, as did the burial authority, Henley Town Council.

The chancellor held that what the Court of Arches had said in Re Blagdon Cemetery [2002] Fam 299 at paragraph 36(iii) about mistakes did not amount to a rule, or even a presumption, that exhumation would be permitted where a mistake as to the location of a grave had been made. Where a body was buried in an unintended grave, the law did not presume that burial to be permanent; but where a body was buried in the place where those concerned with arranging the burial intended it should be buried, the burial was presumed to be permanent and a petitioner had to overcome that presumption in order to obtain the grant of a faculty. As Mr Miller's body had been buried where his family had intended him to be buried this was not a case where the presumption of permanence did not apply and it was not the sort of case where faculties could readily be granted; that was only so in the case of a mistake where the exhumation was to be carried out at the behest (or at least with the support) of the family of the deceased, not where someone else sought to exhume a body in the face of opposition from the deceased's family. The petitioner therefore had to satisfy the court that there were exceptional circumstances which constituted good and proper reason for making an exception to the norm that Christian burial was final.

The chancellor held that the infringement of the petitioner's exclusive right of burial, in contravention of Article 10(6) of the Local Authorities Cemeteries Order 1977, was a substantial matter in the petitioner's favour. Also in favour of the petitioner's case was the fact that it would no longer be possible to fulfil his late father's wishes and this was a cause of distress to the petitioner and other members of his family. Against that, the petitioner's exclusive right of burial took effect subject to ecclesiastical law, which permitted the permanence of burial to be overborne only where there were special circumstances. The petitioner's father's wishes as to the configuration in which his family should be buried did not represent a religious or cultural practice, while the opposition of the Miller family to the exhumation of Mr Miller was founded on the doctrine of the Church of England. The wishes of the late Mr Leventis could be approximately satisfied by the acquisition of alternative plots which would enable family members to be buried together in a different configuration.

Undue delay in bringing the petition and the impact of that delay on the Miller family was significant. While delay was not of itself decisive, the delay was to be considered in terms of the effect it had on Mr Miller's family. With no proceedings having been taken for a year after the mistake became known, they could reasonably have assumed that no action was to be taken. Although the mistaken burial of Mr Miller's body in the plot in respect of which the petitioner had an exclusive right was capable of constituting a special circumstance which might overcome the presumption of permanence, it was outweighed by the desire of the Miller family, following substantial undue delay, to uphold the permanence of Mr Miller's place of burial. Accordingly, the petition was dismissed. The town council accepted that it should pay the court costs and the parties’ legal and other costs. [Alexander McGregor]