Cachia and Others v Faluyi

JurisdictionEngland & Wales
JudgeLORD JUSTICE BROOKE,LORD JUSTICE HENRY,MASTER OF THE ROLLS
Judgment Date27 June 2001
Neutral Citation[2001] EWCA Civ 998
Date27 June 2001
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: A2/2000/3456

[2001] EWCA Civ 998

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(HH Judge Harris QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Master Of The Rolls

Lord Justice Henry and

Lord Justice Brooke

Case No: A2/2000/3456

Michael Cachia & Others
Appellant/Claimant
and
Francis Ola Faluyi
Respondent/Defendant

Patrick Lawrence (instructed by Glazer Delmar for the Appellant)

Francis Treasure (instructed by L Dawson & Co for the Respondent)

LORD JUSTICE BROOKE
1

This is an appeal by the claimant Michael Cachia against an order of Judge Harris QC, sitting as a judge of the High Court, dated 31st October 2000 whereby he directed that his claim in this action be struck out. The judge said that the application by the defendant to have the claim struck out raised an unusual point, on which there was no previous authority. He granted permission to appeal, commenting that the point at issue was a matter of some importance. Although in the events that have occurred in this court the defendant eventually conceded that the appeal should be allowed, the issue is of some general importance. I am therefore delivering this judgment to explain why we are taking the course of allowing this appeal.

2

Put shortly, the issue was this. Section 2(3) of the Fatal Accidents Act 1976 provides that:

"Not more than one action shall lie for and in respect of the same subject-matter of complaint."

Did this mean that if a writ was issued in a Fatal Accidents Act claim brought on behalf of a deceased's dependants but never served, this automatically precluded the bringing of a new action some years later?

3

The facts of the case are simple. On 6th October 1988 Mrs Cachia was riding her bicycle in a road in South- East London when she was hit by a car driven by the defendant. She died 12 days later. Liability for the accident has never been admitted. The defendant claims that she caused the accident by veering in front of him. She left a husband and four children, who were aged 13, 11, 8 and 4 at the date of her death.

4

On 16th October 1991, just before the three-year limitation period expired, a firm of solicitors issued a writ in her husband's name claiming damages both on behalf of the estate and on behalf of her dependants under the Fatal Accidents Act. This writ was never served. There was evidence before the judge that this firm of solicitors represented the claimant up to the end of 1992, and after their last letter to the defendant's representatives on 10th December 1992 Mr Cachia had some direct contact with them himself, although this contact came to nothing.

5

On 18th April 1997 a new firm of solicitors appeared on the scene on behalf of the claimant. On 10th June 1997 they issued a new writ, which was served ten days later. By this time the Cachias' eldest daughter had reached the age of 21: the claims of the other three children were not statute-barred by any primary limitation period. The Statement of Claim was served on 2nd July 1997, and the Defence on 11th July 1997. On 1st August 1997 the defendant's solicitors issued a summons, presumably in support of the pleas of limitation in paragraphs 1–3 of the Defence, which did not at that time include any reliance on Section 2(3). The claimant's solicitors, however, asked them to take no action on this summons pending the resolution of a claim they were pursuing against their client's former solicitors. It appears that liability was eventually conceded in relation to the claims made on behalf of the estate and the Fatal Accidents Act claims brought on behalf of the claimant and the couple's eldest daughter, but not in respect of the dependency claims of the three younger children.

6

On 17th May 2000 the claimant's solicitors issued an application for a declaration to the effect that the three younger children had the right to pursue their claim against the defendant despite the issue of the earlier writ. The defendant's solicitors riposted four months later with an application for an order that the claim be struck out, alternatively for such order limiting the defendant's exposure on liability and quantum as might be just. When Judge Harris heard the matter in October 2000, he was concerned only with the question whether proceedings on the 1997 writ were barred pursuant to the effect of section 2(3) of the Fatal Accidents Act 197He said he did not propose to go on to consider the alternative application to strike out for want of prosecution or delay, although it seemed to him not unlikely that there must be some strength in the defendant's argument that it would not be possible at this length of time to have a fair trial.

7

I have set out the wording of section 2(3) in paragraph 2 of this judgment. The language of this provision has remained the same since it was first enacted as Section III of the Fatal Accidents Act 1846, except that at that time the section read:

"Provided always, and be it enacted, That not more than One Action shall lie for and in respect of the same Subject Matter of Complaint, and that every such Action shall be commenced within Twelve Calendar Months after the Death of such deceased Person." (emphasis added).

8

By the time the fatal accidents legislation was consolidated in 1976, the limitation provision had been siphoned off into other legislation. Most recently, the Limitation Act 1975 had introduced a revised code making new provision for personal injuries litigation. This code adopted the phraseology "an action … shall not be brought" when indicating that a primary limitation period had fully run.

9

On this appeal, before the introduction of an ECHR point, the defendant adopted the argument which found favour with the judge. The judge held that although it was certainly one of the aims of those who framed the 1846 legislation to ensure that all the dependants joined in a single action, the language of the Act was clear....

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14 cases
  • WB (a protected party through her litigation friend the Official Solicitor) v W District Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 26 Abril 2018
    ...see, for example, Ghaidan (above paragraph 24) and, by way of further example (I expect there are others): in the case of this Court, Cachia v Faluyi [2001] EWCA Civ 998; [2002] 1 WLR 1966, and the case of the High Court, Culnane v Morris [2005] EWHC 2438; [2006] 1 WLR 2880. (3) The “Narr......
  • Goode v Martin
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 13 Diciembre 2001
    ...hindrance to such access can be justified in a way recognised by the relevant Strasbourg jurisprudence (for the general principles, see Cachia v Faluyi [2001] EWCA Civ 998 at [17] – [20], [2001] 1 WLR 1996). All she wants to do is to say that even if the accident happened in the way Mr Mar......
  • Ghaidan v Godin-Mendoza
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    • House of Lords
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  • Mulalley & Company Ltd v Martlet Homes Ltd
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    ...hindrance to such access can be justified in a way recognised by the relevant Strasbourg jurisprudence (for the general principles, see Cachia v Faluyi [2001] EWCA Civ 998 at [17] – [20], [2001] 1 WLR 1996). All she wants to do is to say that even if the accident happened in the way Mr Ma......
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1 books & journal articles
  • A Minimalist Charter of Rights for Australia: The UK or Canada as a Model?
    • United Kingdom
    • Federal Law Review No. 37-3, September 2009
    • 1 Septiembre 2009
    ...Lord Steyn, Lord Phillips, Lord Rodger and Lord Carswell, 14 October 2004) (scope of terrorism-related crimes). 66 Cachia v Faluyi [2001] 1 WLR 1966 (hurdles to civil action under Fatal Accidents Act); R v Carass [2002] 1 WLR 1714 (burden of proof in bankruptcy proceedings); Ghaidan [2004] ......

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