Laurie Swift v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 18 July 2012 |
| Neutral Citation | [2012] EWHC 2000 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X02583 |
| Date | 18 July 2012 |
[2012] EWHC 2000 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ11X02583
Robert Weir QC (instructed by Russell Jones & Walker) for the Claimant
Jason Coppel (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 4 & 5 July 2012
The nature of the claim
The Claimant in this litigation seeks a declaration from the court, in accordance with s.4 of the Human Rights Act 1998, that s.1(3)(b) of the Fatal Accidents Act 1976 (as amended) ("the FAA") is incompatible with her rights under the European Convention on Human Rights and Fundamental Freedoms ("the Convention") specifically with reference to Articles 8 and 14, or alternatively under Article 8 on its own.
The provisions of the FAA do not permit the Claimant to bring a claim under s.1 for "loss of dependency" against Davey Markham Ltd, which admits responsibility for the death at work of Alan Winters, with whom she was then living as her partner, on 15 July 2008. By contrast, their son (also Alan) who was born after Mr Winters' death was able to claim a remedy as a dependent child. His claim, I was told, settled at approximately £105,000, whereas the Claimant would wish to seek over £400,000 in compensation. Yet the statutory scheme prevents her from doing so for reasons which legislators and law reformers have, for many years, seen as anomalous. She is not permitted to sue even if she could discharge the burden of proving dependency at the date of the relevant death.
There is contained in s.1 of the FAA an exhaustive list of persons entitled to make a claim in respect of loss of financial dependency. It is provided by s.1(3)(b) that a claim may be brought by the survivor of a couple who had been living "as husband and wife" (i.e. in a quasi-marital relationship), but only in those cases where there has been cohabitation for two years or more prior to the date of death. The Claimant had only been living with Mr Winters for approximately six months prior to his death.
Spouses or civil partners are included in the list of persons entitled to make a claim, as contained in s.1 of the FAA, without limitation of time. The stipulation for a two year period of cohabitation is confined to those who have been living "as husband and wife". Against that background, the Claimant contends that s.1(3)(b) is incompatible with her Convention rights under Article 14 on the basis (a) that she has been treated less favourably than would a person who had cohabited with the deceased partner for two years or more before the death and (b) that the difference in treatment cannot be supported by any objective justification. She suggests that no minimum time period can be justified because any couple living together "as husband and wife" would, by definition, have enjoyed "family life" and a "stable relationship", so as to require a right of action to be available under the FAA.
It is recognised that Article 14 is a "parasitic" right, in the sense that it can only become applicable in circumstances falling within the ambit of another substantive Convention right: see e.g. Serife Yigit v Turkey (Appn No 3976/05. Grand Chamber, 2 November 2010). That is why reliance is placed on the Claimant's rights under Article 8. The claim under Article 14 depends, therefore, upon her establishing that a family life had been enjoyed, or had arguably been so enjoyed, with Mr Winters, and that the facts fall within the scope of Article 8 for that reason.
Although familiar, it is convenient to set out the terms of the two relevant articles under consideration:
Article 8:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 14:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Mr Weir QC explained, in the course of his submissions on the Claimant's behalf, that the free-standing claim based on Article 8 would only be likely to come into play in the event that the court rules that her circumstances are not embraced within the concept of "other status" under Article 14.
Although the Secretary of State had not admitted in his defence the Claimant's financial dependence upon Mr Winters, he is now prepared to accept that she was in fact dependent upon him during the period of time when they were living together "as husband and wife". Before turning to the detailed statutory provisions, and the history of reform proposals over recent years, I can summarise the case advanced on behalf of the Secretary of State which is to the effect that the claim should be dismissed for one or more of three reasons:
i) The facts before the court do not fall within the ambit of Article 8 and therefore could not give rise to a claim either under Article 8 itself or under Article 14.
ii) The difference in treatment between the Claimant and a person who had cohabited for two years or more, prior to the relevant death, is not based on anything contemplated by Article 14, and specifically not on "other status", and therefore could not in any event give rise to such a claim.
iii) In any event, any such difference in treatment would be objectively justifiable, in accordance with Articles 8 and 14. That is because the distinction drawn by s.1(3)(b) falls well within the margin of discretion allowed to Parliament in this context.
The statutory provisions under challenge
I turn first to the provisions of the FAA. It concerns circumstances where someone's death has been caused by the wrongful act, neglect or default of another person. There are conferred by s.1(1) limited rights to claim damages against the tortfeasor upon individuals who are in a qualifying relationship with the deceased. It is to be noted that the scheme represents, therefore, a departure from the usual position in English law whereby only an immediate victim of a tort may seek compensation in respect of it. The Law Commission adverted to this point in its report Claims for Wrongful Death, dating from 1999, and observed that "This exception requires a powerful justification".
There are two causes of action provided for in the FAA of which the first, governed by ss.1 and 3, is the more directly relevant to the present claim. The material provisions of s.1 are as follows:
"1. – Right of action for wrongful act causing death.
(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
(2) Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person ('the deceased') whose death has been so caused.
(3) In this Act 'dependant' means –
(a) the wife or husband or former wife or husband of the deceased;
(aa) the civil partner or former civil partner of the deceased;
(b) any person who –
(i) was living with the deceased in the same household immediately before the date of the death; and
(ii) had been living with the deceased in the same household for at least two years before that date; and
(iii) was living during the whole of that period as the husband or wife or civil partner of the deceased;
(c) any parent or other ascendant of the deceased;
(d) any person who was treated by the deceased as his parent;
(e) any child or other descendant of the deceased;
(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;
(fa) any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;
(g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased."
In so far as they are relevant for present purposes, the provisions of s.3 are as follows:
"3. – Assessment of damages.
(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.
…
(4) In an action under this Act where there fall to be assessed damages payable to a person who is a dependant by virtue of section 1(3)(b) above in respect of the death of the person with whom the dependant was living as husband or wife or civil partner there shall be taken into account (together with any other matter that appears to the court to be relevant to the action) the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together.
(5) If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses."
Although compensation under these provisions is regularly...
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