Dianne Levinson & Anor v Janis Franzer Cross & Ors

Mr Justice Richard Smith: Introduction

1. Yesterday morning (24 November), I heard in the Interim Applications list an application by the Claimants, Dianne Levinson and her brother, Ian McKay, for an order that the Respondents be prevented from excavating or disturbing the subsoil at, or in the vicinity of, the garden in certain premises in East London (Premises) and that the Claimants be authorised to undertake a non-invasive ground penetrating radar (GPR) survey at the Premises. The application is supported by a witness statement from Dianne Levinson and a shorter, adoptive statement from her brother.

2. That survey is sought because of tragic events which occurred some 56 years ago with the kidnap in December 1969 of the Claimants’ mother, Muriel McKay, and her subsequent murder. Although Muriel McKay’s body has never been found, two men were convicted of her murder and sentenced to life imprisonment, namely Nizamodeen Hosein and his brother, Arthur Hosein. At the time of their arrest, they were at their home in Hertfordshire, then known as Rooks Farm.

3. The Claimants have, since 1970, sought to locate the body of their mother, without success. In December 2023, Dianne Levinson set up a company known as Mumum Carly Ltd (Company) to attract publicity and channel resources to the search for her mother’s remains. In June this year, through a benefactor, the Company offered a £1m reward to persons who came forward with credible information directly resulting in the recovery of Muriel McKay’s remains.

4. As a result of the offer, an Israeli citizen, Hayley Frais, came forward with information gleaned from her father, Percy Chaplin, prior to his death. Mr Chaplin formerly operated a tailor’s shop at the Premises. Ms Frais has sworn an affidavit in which she sets out the information apparently conveyed to her (and her brother) by her late father. She explains that, at the time of Mrs McKay’s death, her father employed Arthur Hosein as an outworker. He also employed a Polish worker named Jan, a friend of Arthur’s, who was originally trusted to have a key to the shop.

5. On the day of Muriel McKay’s kidnapping, Arthur did not appear for work and Mr Chaplin therefore asked a friend to drive him to Rooks Farm to collect some completed tailoring. When he arrived at the farm, the place was in darkness and there was no response from his knocking. However, he did see a shadowy figure in an upstairs window which he later came to believe was Mrs McKay.

6. Around early January 1970, Mr Chaplin encountered a strong and unpleasant odour when entering the shop one day. He could not identify the source and it was gone by the next day. In later years, when sharing this information with his children, Mr Chaplin was convinced that a deceased body had been temporarily stored on the Premises before removal and burial in the rear yard. He believed that the body was that of Muriel McKay which had been moved from Rooks Farm.

7. Ms Frais also says that her father told her that, in early 1970, Jan attempted to sell certain jewellery to him. He did not buy this but suspected it belonged to Muriel McKay.

8. The information I have summarised was apparently conveyed to Ms Frais and her brother when Mr Chaplin was in his nineties.

9. Mrs Levinson also notes in her witness statement the reference to Mr Chaplin’s name and the location of the Premises from the 1970 criminal trial transcript. Moreover, at the time of the kidnap, her husband received a brief telephone call, believed to be from Muriel McKay, in which the caller mentioned the same colour and make of car in which Mr Chaplin was conveyed to Rooks Farm on the day of her kidnapping. Finally, Mrs Levinson now realises that, during a second ransom attempt, she and her father were required to wait by a phone box opposite the Premises.

10. Putting all these matters together, she considers that there are strong grounds for believing that her mother is buried at the Premises. However, the Metropolitan Police Service (MPS) has indicated that it received the information imparted by Ms Frais back in 2023. It formed the view then that this information did not satisfy the necessary evidential requirement for a search warrant to be sought. That remains the position of the MPS today despite the McKay family’s efforts to have them search the Premises.

11. Mrs Levinson disagrees with the position of the MPS but now seeks interim and substantive relief through the civil courts. The legal basis of the claim is said to be pleaded as the Claimants’ common law right and moral obligation to arrange for the proper burial of Muriel and their duty to recover Muriel’s remains. Matters are developed further in the Claimants’ skeleton argument where they acknowledge that there is no right of ownership in a dead body, albeit there is a common law duty of proper disposal, which is incumbent on the personal representatives of the deceased or, in the case of intestacy, on the person with the best claim to the grant of letters of administration. That duty is also said to give rise to a right of possession of the body for that purpose. I return to the legal basis of the claim later in this ruling. Procedural aspects/ Respondents

12. This matter first came before the court on 25 September 2025 when Sir Anthony Mann dismissed an urgent without notice injunction brought by the Company seeking the same relief as that now pursued. Sir Anthony dismissed the injunction on the basis that the Company lacked standing to bring the application. He also required any future application to be on notice and supported by a claim form in respect of the substantive claim.

13. On 11 November 2025, the Chief Master made an order on the Claimants’ Part 8 Claim Form declaring Muriel McKay presumptively dead and ordering letters of administration to be granted in their favour for the limited purpose of obtaining Muriel McKay’s body.

14. This latest application and the related Claim Form were issued on 18 November 2025 (last Tuesday) and served on the Respondents later that day. The First and Second Respondents are long leaseholders of properties with shared access to the Premises. The Second Respondent (to whom I shall refer, without intending any disrespect, as “R2”) attended yesterday and submitted a witness statement explaining her opposition to the application. The First Respondent (R1) did not attend but R2 says that their positions are broadly aligned.

15. The Claimants say that there is also a door leading onto the Premises through which access could be gained which does not apparently belong to R1 or R2. Since the Land Registry provides no information as to the ownership of the property to which the door belongs, the Claimants have also issued this claim against persons unknown who might have a right of occupation of the Premises exercisable through the use of that door and served the claim at the adjacent building. However, based on information from R2, it may, in fact, be that there is no such unknown person who might enjoy such access.

16. The freeholders of the Premises are not joined because their access is limited to a contractual inspection right and they have, in any event, indicated their willingness for a scan to be undertaken, subject to appropriate indemnities which the Claimants say they are willing to give. R2’s position on this application

17. Turning to R2’s position on this application, she says that she has a great deal of sympathy for Muriel McKay’s family, she cannot imagine what they must have gone through for over 50 years and she can understand why they would want to investigate new leads that have emerged since the family offered a £1m reward for information. However, she also says that, since July this year, the events related to the McKay’s families efforts to gain access to the Premises to undertake a scan have caused her and her partner significant distress and led them to reporting various related incidents to the police and genuinely fearing for their safety in and around their home.

18. R2 explains these events at a little length in her witness statement. It is appropriate to summarise these. On 23 July 2025, a man identifying himself as Ricardo Patrick (Ricardo) made an unsolicited visit to a neighbouring property requesting access to R2’s garden, stating that his grandfather used to own the property, and that he was creating a sentimental montage to provide as a gift for his birthday.

19. Between 23 and 24 July, Ricardo communicated with R2 and her neighbour, stating a need to compile such montage by 28 July. He also indicated the intention to fly a drone over the property without permission of the homeowners. Ricardo was granted access on 24 July, R2 and her partner believing his request to have been made in good faith. He took a series of pictures, offering R2 and her neighbour money in return, which was declined.

20. On 25 July, Ricardo resumed communications with R2 and her neighbour, now claiming that he and his cousins had begun the process of purchasing a nearby property. He also claimed that he required access to their garden again, this time to conduct a GPR survey, citing drainage issues. R2 refused this request, as she was becoming suspicious about Ricardo’s motives and told him that it was causing her distress.

21. Later that day (25 July), a woman identifying herself as Jess made an unsolicited visit to the Premises, accompanied by someone R2 now knows to be Sheeva Vahid-Ashrafi (a consultant at the Claimants’ solicitors). Jess and Sheeva spoke to R2’s partner through the intercom, claiming to have begun the process of purchasing the nearby property a few days earlier, and requesting access to the garden to conduct a GPR survey, also citing drainage issues. R2’s partner subsequently answered the main door to their property when Sheeva produced an aerial photograph of the garden, claiming it had been obtained from Google Maps. R2’s partner said that a similar request had already been made, Sheeva then volunteering that Ricardo was Jess’ boyfriend, with whom she was buying the property. However, there was now no reference to Ricardo’s cousins. R2’s partner stated that no access would be provided unless they were provided with documents showing why they believed the property was connected to their drainage issues. Jess then stated that the estate agent had supplied her with this information and that she would produce relevant documentation signed off by the estate agent and her lawyer. No such documentation was ever produced. R2 then approached the door. Jess and Sheeva agreed to leave. Sheeva did not disclose that she was a solicitor employed by the Claimants’ solicitors’ firm or that she acted for the McKay family. R2 later approached the estate agent to verify the information given by Jess and Sheeva. The estate agent denied any knowledge of drainage issues.

22. On 28 July, R2’s partner then received a phone call from the estate agent stating that Jess had already booked a team to perform the GPR survey that morning and that they were outside the Premises. Permission was denied for their entry. R2’s partner and the estate agent then met two males standing beside a Pulse-Mapping van, the firm the Claimants now propose should conduct the GPR scan. The men disclosed that the scan had been organised by two men known as ‘Pawel’ and ‘Ricardo’ and that both were near the Property and could be brought to discuss the matter. The men said that they were there to conduct a scan for sewers. R2’s partner briefly met with Pawel who claimed to be unaware that permission to enter the Premises had been denied.

23. Later that day (28 July), Jess made a second unsolicited and unaccompanied visit and met with R2 and her partner. Jess repeatedly and aggressively sought permission to conduct the GPR survey. This was repeatedly denied, R2 making clear that she just needed documents to prove the position. R2 tried to explain that she could not just let a stranger into her property.

24. Around 2 August, R2 received an envelope with £100 cash in it and a note, signed by “Jess and Ricardo” along the lines of “sorry for the inconvenience. Here’s the money as promised". R2 says that no money was promised, it was refused multiple times and, when received, the envelope and note were given to the Police.

25. It was not until 14 August that related activity resumed. The doorbell rang at R2’s home. R2 and her partner did not answer it but it rang again repeatedly and persistently. Eventually, R2’s partner answered the intercom, greeted by a woman’s voice. The woman did not identify herself but it turned out to be Sheeva. She informed R2’s partner that she was attending on behalf of “Ian McKay” whose name they did not recognise but now know to be the Second Claimant. Sheeva asked them to come to the door to speak about a letter she wanted to deliver. R2’s partner made clear that he did not wish to come to the door, nor to be further disturbed, and that any letter could be delivered through the letterbox. Sheeva refused to accept this answer for some time, before asking when she could return and speak to them. R2’s partner made clear that he would not provide a time and the conversation came to an end.

26. Shortly after that, the persistent doorbell ringing resumed. R2’s partner again answered the intercom, making clear his distress through these disturbances, particularly given that R2 was unwell at the time. During the discussion, Sheeva stated that she was joined by Ian McKay and said that Muriel McKay may be buried in the garden. This was the first time that anyone had referred to the Muriel McKay case. R2 did not recognise the name at the time and was not familiar with the case. R2’s partner asked through the intercom if Sheeva had visited the property previously. She denied doing so but went on to say that she would visit the property “every day” until they answered the door. Reluctantly, they went to meet them at the front door, where they met Ian McKay for the first time. During the discussion, they made clear that no access would be given for any form of investigation of the garden without direct involvement of the MPS. Ian McKay claimed that part of the reasoning not to involve the police was to avoid any press involvement. Sheeva did not identify herself as a solicitor involved in the search for Muriel McKay’s remains but described herself as “Ian’s assistant”. R2 expressed sadness and regret but explained that she was troubled by recent events and worried that they were connected. During the discussion, Sheeva accepted that she had lied about not visiting the property previously. This troubled R2 because otherwise they would not have come to the front door. R2 informed Mr McKay and Sheeva that the police would be called about this. They reported this to the police later that evening.

27. On 15 August, R2 was at the front door of her property, awaiting the arrival of a visiting family member in a taxi. A male she did not know or recognise was standing on the street corner on his phone. When he spotted her, he said the words “she’s here” into the phone. At that point, a man she now knows as Mark Dyer (Muriel McKay’s grandson) and Ian McKay rounded the corner. R2 was very distressed by this and went inside and shut the door.

28. The doorbell then rang. R2’s partner answered the intercom, and spoke to Mr Dyer, making it clear that a visit was not wanted. During the discussion, Mr Dyer threatened them, saying that he would have the property ‘swarmed’ (or a similar word) by the press if his request was not granted. R2 asked Mr Dyer if this was a “threat” to which he said “yes”. R2 went to the front door where Mr Dyer attempted to step past her into their home. During the discussion, Mr Dyer claimed that the police had instructed him to “get on with it and show us if she’s here”. Mr Dyer and Mr McKay both indicated little or no knowledge of the attempts by other parties to gain access which R2 now understands to be false. The discussion ended when R2’s expected family member arrived.

29. R2 says that, since this unsolicited visit, a number of further methods have been used to pressurise them to grant access, most notably the threat of legal proceedings. On 21 August 2025, R2 received the first letter from the solicitors for the family of the late Muriel McKay, said to include Ian McKay and Mark Dyer. The letter sought permission to carry out a GPR scan. On 28 August 2025, R2 and her partner replied, confirming the denial of the request for access. They explained that they considered this a matter for the police and that they would consult with them and assist where possible. They also explained the previous unpleasant interactions with members of the McKay family and associated parties which they considered to amount to harassment.

30. On 9 September 2025, Mr Dyer published a press release on his Twitter account which read, in relevant part:- “Given the ongoing press interest in this matter, we initially approached the current leaseholders of the property discreetly, with the aim of avoiding any public attention. We proposed a non-invasive scan under the pretext of checking drains, with the sole intention of ruling out this location. Unfortunately, progress has since been delayed, as the leaseholder for 447a has declined to permit any form of investigation – including the proposed non-invasive survey. I now need help from the press to obtain access to one of the small flats above the shops who have a staircase, leading to the backyard.”

31. On 10 September 2025, the Claimants’ solicitors sent a letter before action, albeit with the client now identified as the Company (without explaining what this entity was or its legal standing to bring a claim). The letter required a reply by 18 September and stated that, unless access was provided, they would commence legal proceedings and produce their letter to the court on the question of costs. R2 and her partner did not see the letter until 13 September 2025. The legal basis for the claim was stated as “common law rights to have possession of the remains of a deceased family member”.

32. On 16 September 2025, R2’s partner replied, setting out several occasions in which R2 believed that the Claimants, their family members or their representatives had unlawfully sought to gain access to her property through deception.

33. On 24 September 2025, the Company applied for a without notice injunction against R1 and R2, the witness statement in support confirming (at [31]) that the McKay family had sought to enter the Premises under the false pretext of checking drains to avoid public attention.

34. Around this time, R2 was receiving pro bono legal advice from a firm of solicitors who sent a letter to the Claimants’ solicitors on 1 October. They, in turn, responded the same day, enclosing a copy of the original without notice injunction application papers. After reviewing these, R2 wrote to the Claimants’ solicitors on 14 October, explaining all the reasons why they were refusing to grant access.

35. Around this time as well, R2’s partner was at home and saw a group of men with video recording equipment set up placards directly outside the Premises and place flyers on two poles outside R2’s front door. While recording, they approached members of the public, sharing copies of the flyers. The flyers advertised R2’s address and stated that “ … the leaseholders are blocking our access to the fire escape and unused backyard”. They also invited readers to “ask why access is being denied”, causing concern to R2 and her partner that members of the public might approach them or cause them danger. R2 points out that the land is not unused but enjoyed as a garden.

36. On 17 November, R2 wrote to the Claimants’ solicitors seeking to explore a possible resolution without the need for court proceedings. Unfortunately, the Claimants did not agree the additional conditions requested by R2 and she now says it unlikely that she would accept similar conditions if offered.

37. R2 says that her right to privacy has been infringed, the access sought is entirely on the Claimants’ terms, including as to timing, there is no proper acknowledgement of the Claimants’ wrongdoing and Mr Dyer continues to brief the press and publicise R2’s address, R2 has been the subject of multiple press requests, the police have said that they do not intend to undertake further investigation on the basis of the new information and the Claimants say that they wish to involve Pulse-Mapping but they were involved in the original deception. For all these reasons, R2 does not wish to grant access to the Claimants.

38. In any event, although a matter for submission, R2 has been advised that there is no legal basis for the claim. As to that, I received a skeleton argument from R2’s counsel in which various arguments are advanced as to why it is said the court cannot or should not grant an injunction, including (i) the inadequacy of notice and lack of genuine urgency (ii) the absence of a serious issue to be tried, there being no recognised right at law to enter private property even where entry is sought in pursuance of any common law duty to arrange for a proper burial and statute providing its own mechanism for access by the police (not the public) to premises where human remains may be located (iii) the police themselves having declined to obtain a search warrant despite having access to all the investigative materials and more extensive investigative powers than the parties or the court (iv) the conduct of the Claimants and their associates which undermines any claim to interim equitable relief (v) the disproportionality of the relief sought in terms of the infringement of R2’s Art 8 right to a family life and privacy and (vi) relatedly, the balance of convenience weighing firmly against the grant of a mandatory injunction. Discussion — introduction

39. Turning to the issues before the court, the kidnapping and murder of Muriel McKay was an abhorrent crime with which her family have had to live for decades, their pain made even worse by their inability to arrange a dignified funeral and to inter her mortal remains. That sentiment is shared by all parties before the court and by me. However, my role yesterday and today is to consider objectively and dispassionately whether the circumstances of this case are such as to justify the grant of interim relief ahead of the substantive trial of this matter. I now consider the different elements which go to that question, as these were argued before me yesterday. Urgency

40. As to the question of the urgency of the application, brought on limited notice to the Respondents, the Claimants emphasised the risk of disturbance to the ground or the integrity of the survey otherwise being compromised by the actions of third parties, not least given the level of press attention and the recent reward that had been offered. The Claimants made clear, however, that there were not suggesting that the such risk might emanate from actions of the Respondents. Moreover, urgency was heightened in this case by the arrival of Ms Frais from Israel and her limited availability in this jurisdiction this week only to assist in connection with any survey that might be undertaken.

41. In my view, none of this provided good reason for providing the Respondents with little more than the minimum period of notice for this hearing. The parties have been in discussion about this matter now over a course of months. There is no suggestion of any risk of disturbance having materialised over that period. Moreover, even if such a risk were present, it is not the Respondents or the police who have been publicising this latest lead and its location. Likewise, Ms Frais’ potential presence in the country does not militate in favour of urgency. The Claimants were prepared to proceed with a survey back in July this year without Ms Frais and their associates turned up at the Premises for that purpose, albeit R2 did not allow them to be admitted then.

42. As a result of such short notice, the court has not had the benefit of submissions or evidence from R1, apparently due to the shortage of time. For the same apparent reason, there is no statement from R2’s partner. As it is, R2’s evidence and submissions were only served shortly before the hearing. It could be said that the evidence of R1 and R2’s partner are likely to be closely aligned. That may be right but it would somewhat miss the point. Neither has been able to participate effectively in this hearing because of a suggested urgency which I consider to be lacking.

43. The Claimants’ approach is, regrettably, consistent with, albeit not as serious as, the effort to have this application heard on a without notice basis before Sir Anthony Mann. Quite rightly, he rejected an approach to the court made on that basis. R2’s primary position at the hearing was that I should dismiss the Claimants’ application for the reasons to which I will turn. However, she also went on to say that, if the court was not presently with her on the other arguments or felt that these could not sensibly be dealt with given the way the matter had come before the court, she would wish to adjourn the application so that it could argued properly and more fully in due course.

44. I now turn to consider those other arguments. Serious issue to be tried

45. It was common ground that the American Cyanamid principles are engaged on this application. As to whether there is a serious issue to be tried, it seems to me there are two elements, namely whether the Claimants have advanced a cause of action known to English law and, if so, whether that cause of action is sufficiently arguable on the facts of this case to cross the relevant threshold.

46. As to the former, it was common ground that there is no right of ownership in a dead body. However, it was also common ground that the Claimants had a right to possession of Muriel McKay’s body for the purpose of discharging their common law duty to dispose properly of a dead body. It was this right and this duty — the Claimants said — that found their cause of action. As a preliminary matter, although letters of administration have not yet been issued, I accept for present purposes that the Claimants enjoy such a right and are subject to such a duty, and that they therefore have standing before the court in seeking their vindication or discharge and related interim injunctive relief for that purpose. R2 did not suggest otherwise yesterday.

47. Rather, R2’s position was that the duty to arrange a proper burial does not extend to a right to enter upon and to carry out investigations on private property. That contrasts with the specific statutory power under s.55 of the Police, Crime, Sentencing and Courts Act 2022 which does afford a specific power for a constable to apply for a search warrant where there are reasonable grounds for believing that material consisting of “relevant human remains” is on the premises. The existence of that specific statutory regime is said to reinforce the non-availability to the Claimants here of any relevant corresponding civil cause of action to the same end.

48. The Claimants say that R2 mischaracterises their claim. They are not applying for a final substantive remedy in purported vindication of a right to enter upon land to carry out investigations. However, the court does have power under CPR, Part 25(1)(c) to authorise a survey of this nature ancillary to, and in support of, their claim based on their rights and duties in relation to Muriel McKay’s body, and to permit them (or their agents) to enter onto R2’s land for that purpose pursuant to CPR, Part 25(1)(d). The existence of a specific statutory regime for the recovery of human remains does not undermine the powers of the court in support of the common law rights and duties of a personal representative.

49. I spent some time at yesterday’s hearing exploring this point since it was not entirely clear to me how the Claimants were putting their substantive case and it is that substantive case which informs the merits test for the purposes of interim relief under the American Cyanamid principles. Perhaps most relevantly, the Particulars of Claim state that:- (i) The Claimants have the common law right and moral obligation to arrange for the proper burial of Muriel which rights and obligations they now seek to exercise [9]; (ii) The Claimants aver that they are under a moral duty to locate, recover, and arrange a dignified and proper burial for Muriel and that no other person is able to do so [10]; (iii) The Claimants believe the results of the scan and the other evidence will demonstrate that there are reasonable prospects that Muriel is buried at the premises [17]; (iv) Once the court makes such a finding, in balancing the Claimants’ rights to recover Muriel’s remains against the rights of the Respondents, the court should grant an order permitting the excavation and removal of human remains likely to be found at the premises [18]; (v) Upon such a finding, the Claimants, by virtue of their common law rights and moral obligations in respect of Muriel’s remains, will be entitled, with the assistance of the MPS and the coroner, to undertake the excavation and removal of those remains [19]; (vi) In the prayer for relief, the Claimants seek by way of final relief:- (a) a prohibitory injunction restraining the Respondents from excavating, disturbing, or in any way interfering with the subsoil at the Premises until a GPR scan has been conducted; (b) A mandatory injunction requiring the Respondents to grant the Claimants, together with an instructed GPR surveyor, access to the Premises to conduct a scan to determine whether the remains of Muriel McKay are buried there; (c) A declaration that there are reasonable prospects that the remains of Muriel McKay are buried at the Premises; and (d) An order permitting the Claimants to cause to be undertaken the excavation and removal of any human remains likely to be discovered at the Premises.

50. I have to say that I found this pleading difficult to follow, appearing to mix up what might be sought by way of interim and final relief, as well as seeming to imply at least an entitlement to enter the Respondents’ premises but only then upon certain findings being made to a threshold falling short of the balance of probabilities. In making this point, I am not seeking to be critical. It is perhaps unsurprising that there are these difficulties in circumstances in which the pleading was put together at short notice and without counsel’s input. However, that rather reinforces the point about this matter having been brought on unnecessarily quickly when the suggested urgency was not present.

51. Despite these difficulties, and setting aside for one moment the need for possible amendment, and recognising that this is uncharted territory and that I may be wrong, I am nevertheless prepared to accept for present purposes that the Claimants are asserting here that their common law right to possession of Muriel McKay’s remains for the purpose of her dignified burial are engaged in this case, and as against both Respondents, that this would give rise to a recognisable cause of action under English law, and that the court’s ancillary powers to provide interim relief in support of that cause of action are available here, including in the form of the interim relief now sought. In that legal sense, I therefore accept that there is a serious issue to be tried. I reiterate, however, that this is for present purposes only based on the limited argument heard, and that my finding today is not intended to bind any judge who may consider the issue on a future occasion or prevent the Respondents from arguing otherwise in the future, including on exactly the same materials.

52. Turning to whether, on the facts, there is a serious issue to be tried, the threshold is a low one, namely whether the case is one which is more than barely capable of serious argument and yet not necessarily one which the judge believes to have a better than 50% chance of success. In many cases, that threshold may not be difficult to cross. Here, however, the Claimants’ position is again somewhat precarious in my view. I make clear that, as discussed yesterday, it is no job of this court at this juncture to come to a view on the merits of the case or to engage in a detailed forensic analysis but the evidence of the presence of Muriel McKay’s remains at the premises, such as it is, seems very thin. I well appreciate that the Claimants have their own views about it but, considered objectively, this turns largely (but not exclusively) on the contents of the affidavit of Ms Frais, itself recounting what she was told by her elderly father, his account to her containing no direct evidence that the body was on the premises rather than a suspicion that it was based on what seems to be largely, if not exclusively, circumstantial matters.

53. Even putting this together with the other matters relied on, such as the call mentioning the colour and make of a car, the location of the second ransom demand opposite the Premises and the references at the criminal trial to Mr Chaplin and his tailor’s shop, the evidence remains very thin. That is reinforced in my view by the decision of the MPS not to search the Premises despite their longstanding involvement and prior investigative efforts in this matter, including later attempts to recover the body elsewhere. Nevertheless, again for present purposes, and with the same caveat about what I say today not binding any future judge, even on the same materials, I am prepared — hesitantly — to accept on the limited argument I have heard that there is a serious issue to be tried from a factual perspective as well. Adequacy of damages/ balance of convenience

54. It is common ground between both sets of parties to this case that damages would not be an adequate remedy. I agree.

55. As for the balance of convenience, the Claimants explained the procedure for a GPR survey, using a lawnmower-type radar device pushed over the ground, requiring only marking out with chalk or flags to identify the search area, with a measured survey also carried out to allow accurate positioning of any notable findings. Once the on-site work is done, the radar data is then processed using software and a report produced. The on-site works are expected to take less than six hours. Given the distress that has been caused to the Respondents already, which was fairly acknowledged by the Claimants yesterday, and for which they apologised in open court, the Claimants have confirmed that, although they prefer to use Pulse-Mapping, who are ready to go, they would be agreeable to appoint another firm, if the court thought it appropriate. A supervising solicitor would be present but the Claimants’ family would not be. Although the Claimants fairly recognised that, having anyone on one’s land is intrusive, they say that this would be minimally so, not least here given that the Premises are already overlooked.

56. It was under balance of convenience that the Claimants also emphasised the ‘sound and fury’ that there had been concerning the survey and submitted that it would be in everyone’s interests for this to be carried out promptly, so as to minimise the risk of further intrusion for the Respondents and to allow all parties to take stock on the basis of the data from the survey. If interim relief is not granted now, a survey will still likely be sought as part of the case management directions for expert evidence. If granted now, there is a real prospect of settlement without further court time being taken up but, if not granted now and the Claimants were to succeed, they may well be entitled to more intrusive relief.

57. In this regard, the Claimants drew an analogy with pre-action disclosure and how such a process can save significant time and expense by the parties knowing in advance where they stand and whether there is, in fact, any substance in the claim being intimated by having early disclosure of materials which are potentially decisive one way or the other. Having the survey done may likewise well lower the temperature by meaningfully informing the parties whether there is substance to the claim being advanced and potentially avoiding significant legal costs being incurred, including the preparation of a defence by R2 which may turn out not to be required.

58. Having considered the Claimants’ arguments, I was not persuaded that the balance of convenience favoured the grant of the injunction sought. First, for similar reasons as those already considered under urgency, I am not persuaded that there will be interference with the subsoil at the Premises if the relief is not granted now. There is no suggestion of interference by the Respondents and the risk of third party interference (even in light of recent publicity) is not, in my view, made out. That is reinforced by the views of the police who presently see no need to search the Premises. Even if a risk of interference by third parties acting on publicity had been made out, the Respondents have not sought any such publicity themselves. They have sought to avoid it.

59. Nor did I find persuasive the argument that the grant of an injunction at this stage might well avoid future time, costs and further proceedings. The court will, of course, always encourage parties to resolve their disputes and to avoid costs being incurred unnecessarily. I do hope that this can still be achieved here. However, in my view, the Claimants’ submission looked at things the wrong way round. There is a reason that the law imposes additional conditions for the grant of interim relief or, indeed, pre-action, disclosure. The fact that such relief might well end up short-circuiting the process does not obviate the requirement to show that the relevant relief is required pre-action or at any early stage of the proceedings. In this case, the Claimants have not established that such relief is needed now or why the usual pre-trial procedures should not be observed, those procedures ensuring that both sides have a fair opportunity to present their cases and that both cases are themselves properly scrutinised.

60. Finally in this regard, I was not persuaded that, even if a survey was carried out, it would be conclusive one way or the other or, to use the Claimants’ words, that it would produce incontrovertible data. To the contrary, as I understand the position, the data may well be inconclusive and, even if Muriel McKay’s remains are not present, that data may still suggest features or disturbance which might indicate areas of potential further investigation. Although I can appreciate the anxiety of the McKay family to find answers and get closure, that cannot be at the expense of the rights and interests of the Respondents in these proceedings. Even if the court might, in due course, go on to order such an investigation, that will be done in a much more measured way, with balanced input from both sides. I acknowledge what was said delicately yesterday about the Claimants’ advancing years but there is no reason why the Claimants cannot progress the proceedings quickly in the proper way.

61. Moreover, although the Claimants say that the process is relatively straightforward and non-intrusive, they accept that there will be interference with the Respondents’ Article 8 rights to a family life and privacy. I accept that such interference will not be insignificant and it would be felt all the more keenly now against a background of what the Respondents consider, with justification in my view, to be the recent negative conduct perpetrated against them by the Claimants or their associates. The Claimants’ further argument that the Premises were already overlooked by others was not compelling and, again, rather missed the point given the nature of the interference now proposed. Nor, in my view, does the offer of paying for a hotel room for R2 and her partner to retreat to mitigate that interference.

62. Accordingly, I find that the balance of convenience firmly favours the refusal of both aspects of the interim relief sought. Discretion/ ‘clean hands’

63. In case I am wrong about that, I nevertheless turn to the question of whether I would have refused to exercise my discretion to grant interim relief on the basis of the Claimants’ conduct just mentioned. The Claimants sought to persuade me that the ‘clean hands’ doctrine was not engaged here. I agree that, although often widely cited, this equitable doctrine does not appear to feature commonly in the cases as a factor vitiating the grant of interim relief. To that end, I was referred to Snell’s Equity [at 5-011]. To summarise how matters are put there concerning the clean hands doctrine, the question is not whether any general moral culpability can be attributed to the party seeking relief but whether this should be denied because there is a sufficiently close connection between that party’s alleged misconduct and the relief sought, the party seeking to derive advantage from his dishonest conduct in so direct a manner that it is considered unjust to grant him relief. In each case, it is a matter of assessment by the judge, who has to examine all the relevant factors in the case before him, to see if the misconduct of the applicant is sufficient to warrant a refusal of the relief sought. That involves a multi-factorial assessment.

64. Snell says that this maxim is closely related to the common law maxim ex turpi causa non oritur actio and posits a close similarity between the operation of equity and of common law in this area. According to the majority in the Supreme Court in Patel v Mirza [2016] UKSC 42, the common law doctrine should not be applied mechanistically. Rather there is a need to consider a range of factors, to look at the specific policies behind the relevant prohibition and the particular conduct complained of and to consider whether it would be disproportionate to deny relief to the party responsible for that conduct. As for the types of conduct that might engage the clean hands maxim, this has, on occasion, been invoked in cases where the relevant party’s conduct is not obviously unlawful or immoral, albeit these cases may be explained on other grounds. However, modern examples in which the clean hands maxim is invoked invariably involve some form of dishonesty. Snell suggests that great care should be taken in invoking the maxim where there is no “serious immoral and deliberate misconduct”.

65. As I have already indicated, the Claimants did apologise unreservedly yesterday for the conduct complained of by the Respondents and did not seek to take issue with any of the matters identified by R2 in her related evidence. For present purposes, I therefore accept that evidence. The Claimants did, however, point out that Dianne Levinson was not herself implicated in that conduct.

66. Having considered the related evidence, which I have already summarised, I am satisfied that the conduct undertaken by the Claimants, or on their behalf, was appalling. It started with the Claimants’ associates gaining access to the Respondents’ premises and photographing the property under false pretences. They say they took that course to avoid unwanted publicity. However, that is no excuse for deception and lies. That was followed by further deception concerning a bogus property purchase and a drainage issue, a deception associated in by a solicitor from the Claimants’ solicitors’ firm. That was followed later by the GPR survey team turning up at the Premises, seemingly to present the Respondents with a fait accompli. The fact that the GPR survey team had (as explained yesterday) themselves been deceived as to the purpose of the survey makes matters worse. The Claimants or their associates also harassed R2 and her partner on a number of occasions, both while the lie about the need for the survey was being perpetrated and even after the real reason, namely to search for the remains of Muriel McKay, had been disclosed. Perhaps the most appalling aspect of that harassment was the threat by Mark Dyer that he would have the property ‘swarmed’ (or similar) by the press if his request was not granted and his confirmation that this was indeed a threat.

67. The course of conduct described, and I have only identified here some of it, represented threats, deception, dishonesty, lying, bullying and harassment. It was obviously immoral and, in part at least, likely unlawful. There is no justification for it. Something has gone seriously wrong here and it seems to me that, in their desperation to find an answer for what has happened to Muriel’s body, the Claimants and Mark Dyer have lost a sense of perspective and respect for the interests, concerns, privacy and safety of others who are perceived to stand in the way of their campaign. Quite rightly, the McKay family seeks dignity for their beloved mother and grandmother but, in doing so, they have not shown the Respondents the dignity they deserve. Moreover, I am in no doubt that R2 was genuinely in fear of the Claimants’ actions as evidenced by her repeated contact with the police and the pressure on her as a result of the Claimants’ publicity which identified her property, even on a post outside her home. I am also satisfied that she still remains in fear. The fact that Dianne Levinson herself was not personally involved in such conduct does not diminish its impact or, in my view, her association with it.

68. Given such egregious conduct, the obvious policy considerations to which it gives rise in the context of the expectations of parties in the conduct of their disputes and their engagement with counterparties, the requirements of fairness and the overriding objective, and the obvious and direct connection between such conduct and the relief now sought from this court, I am in no doubt that the clean hands doctrine is engaged here and that, had it been necessary to do so, I would have declined relief on that account in the exercise of my discretion. I should also say that I would also have been satisfied that this was an entirely proportionate course, not least having regard to the matters already mentioned in this judgment with respect to the difficulties with the claim, the balance of convenience and the fact that, as the Claimants themselves say, they may still seek to apply for directions for such a survey in due course in any event. Disposal

69. I refuse the relief sought and I dismiss the application.