The recently reported case Re Bingham Cemetery (No. 2) [2025] ECC S&N 3 concerns an application by Mrs Rita Elizabeth Harbury-Carlisle, otherwise Lady Rita Harbury-Carlisle, (‘Rita’) seeking the exhumation of the remains of her sister Valerie Allsop (‘Valerie’) and her father Eugene Arthur Allsop (‘Eugene’) from their grave in Bingham cemetery. Whilst the Chancellor could find no exceptional circumstances to justify the grant of a faculty for this recent petition, the judgment includes a discussion of the doctrine of res judicata – “a matter judged”, the legal doctrine that prevents the same parties from relitigating a claim or issue that has already been decided by a competent court. The judgment also includes a further consideration of the application of Re Blagdon Cemetery [2002] Fam 299 and Re Christ Church Alsager [1999] Fam 142.
Background
In 2018, Joan Thetis Allsop sought the exhumation of the remains of her daughter Valerie Allsop (who had died aged 6 months) and her husband Eugene Arthur Allsop from a consecrated area of Bingham Cemetery, which had been the usual place for burial of those who died in the village of Gamston, a few miles away. Ockleton Ch stated:
“[3]. The intitulement is in the form it is, because this is the second time that there has been a petition for the exhumation of the remains of Valerie and Eugene. The former petition was by … their mother and wife respectively. That petition was refused: the judgment is at Re Bingham Cemetery [2018] ECC S&N 1.
There was no challenge to that decision by way of appeal or otherwise … At this point it suffices to say that the background facts and the law set out below are largely repeated from that judgment, which is not said to have been other than correct”.
The petitioner and her husband had bought a plot for themselves in Wilford Hill Cemetery and a plot next to it, in which the remains of the petitioner’s mother had been interred since the previous petition, rather than in the grave of her husband and daughter at Bingham. In Re Bingham Cemetery (No. 2) [2025] ECC S&N 3, the petitioner therefore now sought permission for the exhumation of the remains of her sister and father and for the remains to be interred in the same grave as her mother at Wilford Hill [5,6].
Alsager and Blagdon
In his summary of the pertinent law, the Chancellor said:
[7]. In my earlier decision I set out the law applicable to petitions of this sort. In doing so I attempted to determine how a court in the Northern Province should respond to the apparent differences in approach between the decision of the Court of Arches in Re Blagdon Cemetery [2002] Fam 299, and that of the Chancery Court of York in Re Christ Church Alsager [1999] Fam 142.
I noted at [10] to [11] that treating the two decisions as effectively of parallel jurisdiction, as had been suggested, did not resolve any conflict between them. The suggestion became law by the insertion of s 14A into the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, with effect from 1 March 2019.
But it seemed (and seems) to me that although there are differences, they are capable of resolution, even though it now must be the case that, for the reasons given at [11] in the earlier decision, Alsager would appear to have superior authority. I say that despite the fact that Alsager is rarely referred to in post-2019 exhumation decisions
[8]. Be that as it may, there can be no room for doubt as to the principles. The starting-point is that Christian burial is to be seen as permanent, because it is the act of committing the remains or the ashes of the departed into the hands of God. There is therefore a presumption against exhumation. That is the clear consensus of all the English cases, of whatever age and of both Provinces. It follows that where there has been a burial in consecrated ground, accompanied as it will have been by the rites of the Church with the words of commendation of the departed to God and committal of the persons remains (whether as a coffin burial or ashes) to burial, permission for exhumation is not given by the Court on demand. Rather, it is for the petitioner in each case to establish some special circumstances that merit an exception from the general rule of the finality of Christian burial.
Res judicata
As there had been a previous decision on whether the exhumation of the petitioner’s sister and father should be permitted, the Chancellor questioned whether it was a proper matter for consideration: whether the Court should determine this petition afresh, or whether the matter should be regarded as res judicata, that is to say finally determined by the previous decision.
Ockelton Ch reviewed res judicata with reference to the consideration of Burns KC Ch in Re Brookwood Cemetery (No 2) [2024] ECC Gui 3, [10] to [16], for which a possible comparison is with Re Cheshunt Cemetery (No 3) [2019] ECC StA 2, not cited in that case, although earlier proceedings by the same petitioners relating to the same issue (Re Cheshunt Cemetery (No 2) [2018] ECC StA 2; [2018] EACC 4). He concluded:
[17]. The regrettable outcome of this discussion is that the position is wholly uncertain. Re Brookwood Cemetery (No 2) decides that the doctrine of res judicata applies in the consistory courts, and that a second petition for the same relief can be considered only on the basis that it seeks to set aside the earlier decision, and can be granted only if it would be right to set that decision aside. As there stated, that rule appears to extend to all cases where the relief has been sought previously, even if by a person different from the present petitioner.
The view of the Dean in Re Cheshunt Cemetery (No 2) was that a new petition for the same relief can be considered even if (or perhaps only if) an application for the previous decision to be set aside has failed: in other words, if there has been a decision that it would not be right to set the earlier decision aside. Re Cheshunt Cemetery (No 3) appears to apply a rule that a new petition by the same petitioners for the same relief but supported by different arguments can be considered regardless of any application to set aside the earlier decision.
[18]. In these circumstances I am not obliged by judicial comity to follow Re Brookwood Cemetery (No 2). In any event, its attempted extension to all subsequent proceedings seeking the same relief even by a different petitioner is obiter, and is not justified by the arguments considered. Such a conclusion realistically requires the judgment to be regarded as a judgment in rem, binding the world. That possibility is not considered by any of the cases, and is beyond what can be considered here.
[19]. I do not rule out the possibility that the court of its own motion might decline to redetermine an issue on which there had already been a fully-reasoned and applicable decision: such action might be based on the ground that the new proceedings were simply repetitious and that no useful purpose would be served by spending time on them. Alternatively, the court might decline to consider the matter afresh and instead simply repeat its earlier decision. These are possibilities that might be explored in another case.
This petition and its consideration
The Chancellor concluded:
“[20]. The present case seeks the same relief as was sought in Re Bingham Cemetery, but the petitioner is different. The present petitioner could not have appealed against the earlier decision; nor could she have applied to set it aside. I do not consider that either res judicata or abuse of process in the inter partes sense apply at all.
He determined the petition on its own merits, but in doing so drew material from that put forward by members of the same family in the earlier case and the unchallenged decision in the earlier judgment. “It is clear from the papers that … the present petitioner, was fully aware of the earlier proceedings; she gave her consent to the earlier petition and knew what was being said in support of it”.
He could find no exceptional circumstances to justify the grant of a faculty:
“[28]. Neither separately nor together do the points advanced by the petitioner constitute special circumstances displacing the presumption of the permanence of Christian burial. The petition is refused. The remains of [the petitioner’s father and sister] must rest undisturbed on earth, while their souls remain in the hand of God”.