Matthews v Ministry of Defence
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOFFMANN,LORD MILLETT,LORD HOPE OF CRAIGHEAD,LORD BINGHAM OF CORNHILL,LORD WALKER OF GESTINGTHORPE |
| Judgment Date | 13 February 2003 |
| Neutral Citation | [2003] UKHL 4 |
| Court | House of Lords |
| Date | 13 February 2003 |
[2003] UKHL 4
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Millett
Lord Walker
My Lords,
The first question in this appeal by Mr Matthews is whether in English law he has what is to be regarded, for purposes of article 6 of the European Convention on Human Rights, as a "civil right" to claim damages for tort against the Ministry of Defence. If that question is answered in his favour two further questions arise: whether section 10(1) of the Crown Proceedings Act 1947 infringes Mr Matthews' right guaranteed by article 6 to a fair trial of that claim, and whether (if so) such infringement can be justified.
I am indebted to my noble and learned friend Lord Walker of Gestingthorpe for his summary of the facts and the history of the proceedings, his recitation of the relevant provisions of the 1947 Act and the Convention and his account of the most important Strasbourg jurisprudence, none of which I need repeat. I can turn directly to the first question expressed above.
There is much common ground between the approaches of the parties to this question. It is recognised, first, that the expression "civil rights" in article 6 of the Convention is autonomous: König v Federal Republic of Germany (1978) 2 EHRR 170 at 192-193, paragraph 88. This means that the concept of a "civil right" cannot be interpreted solely by reference to the domestic law of the member state. It is the view taken of an alleged right for Convention purposes which matters. But, secondly, the Strasbourg case law is emphatic that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular content for civil rights in any member state: see, for example, Z v United Kingdom (2001) 34 EHRR 97 at 134-135, 137, paragraphs 87, 98. Thus for purposes of article 6 one must take the domestic law as one finds it, and apply to it the autonomous Convention concept of civil rights. It is evident, thirdly, that the Strasbourg jurisprudence has distinguished between provisions of domestic law which altogether preclude the bringing of an effective claim (as in Powell and Rayner v United Kingdom (1990) 12 EHRR 355 and Z v United Kingdom (2001) 34 EHRR 97) and provisions of domestic law which impose a procedural bar on the enforcement of a claim (as in Stubbings v United Kingdom (1996) 23 EHRR 213, Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 and Fogarty v United Kingdom (2001) 34 EHRR 302). The European Court has however recognised the difficulty of tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, acknowledging that it may be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy: see Fayed v United Kingdom (1994) 18 EHRR 393 at 430, paragraph 67. An accurate analysis of a claimant's substantive rights in domestic law is nonetheless the first essential step towards deciding whether he has, for purposes of the autonomous meaning given to the expression by the Convention, a "civil right" such as will engage the guarantee in article 6.
Few common law rules were better-established or more unqualified than that which precluded any claim in tort against the Crown, and since there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available: Feather v R (1865) 6 B & S 257 at 295-297, 122 ER 1191 at 1205-1206; Robertson, Civil Proceedings By and Against the Crown (1908), pages 350-351. The potential injustice of this rule was mitigated in several ways: by permitting actions against the personal author of the injury to the claimant and by the practice of the Crown in standing behind its delinquent servant (if he had been acting in the course of his duty) and accepting responsibility for any damages awarded (ibid, and see Mulcahy v Ministry of Defence [1996] QB 732 at 740); by making provision for the payment of pensions to members of the services injured by other members in the course of their duties, as more fully described by my noble and learned friends Lord Hope of Craighead and Lord Walker; and, in cases where the individual author of the claimant's injury could not be identified, by appointing a nominee defendant to enable the claim to proceed.
Despite these palliatives, however, the Crown's position as litigant became the subject of strong criticism and in 1921 the Lord Chancellor and the Law Officers were agreed that a change should be effected and that legislation should be introduced as soon as a bill could conveniently be prepared. One of the changes expressly envisaged was that the Crown should become liable to be sued in tort. A very strong committee, chaired by the Lord Chief Justice, was accordingly appointed to propose such amendments of the law as the committee might consider advisable and feasible having due regard to the exceptional position of the Crown and to prepare a bill. In 1924 the committee's terms of reference were modified and it was asked to prepare a bill to provide (among other things) that the Crown should become liable to be sued in tort on the assumption that that alteration in the law was both desirable and feasible.
The committee in due course annexed its proposed bill to a brief report dated February 1927: Crown Proceedings Committee: Report (Cmd 2842). In clause 11 of the draft bill, under the heading "Substantive Rights", it was provided that "Subject to the provisions of this Act, the Crown shall, notwithstanding any rule of law to the contrary, be liable in tort". This provision was however subject to a saving in clause 29(1)(g) providing that:
"Except as therein otherwise expressly provided, nothing in this Act shall -
"(g) entitle any member of the armed forces of the Crown to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto, or the performance or enforcement or purported performance or enforcement thereof by any member of those forces, or other matters connected with or ancillary to any of the matters aforesaid …"
Thus in this restricted field the immunity of the Crown was to survive, subject to the palliatives already noted.
But the proposed bill was not enacted and in 1946 one of the palliatives noted above, the practice of appointing a nominee defendant in tort actions against whom damages could be awarded, was disapproved by the House of Lords in Adams v Naylor [1946] AC 543, a decision followed shortly thereafter by the Court of Appeal in Royster v Cavey [1947] KB 204. Thus in a case (such as the present) in which the claimant could identify no individual Crown servant as responsible for causing him injury, he would have no right to redress save under any relevant pension arrangements. In both these decisions it was strongly urged that the law be changed, and they greatly strengthened the pressure for reform. But in neither case was the injured plaintiff a member of the armed services: in the first case the victims were children playing on a beach where mines had previously been laid, in the second a factory worker injured on her way to work.
The Crown Proceedings Bill 1947 was based on the draft bill of 1927 but with modifications of both substance and form. It was introduced into the House of Lords, where it was amended. What became clause 2 (in Part I, "Substantive Law") provided for the general liability of the Crown in tort. This clause of the bill was in the same terms as the enacted section 2. But what became clause 10, making special provision for the armed services, read as follows (as amended in the House of Lords, before the bill went to the House of Commons):
"10. (1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown and is either on duty as such or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown:
Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces.
(2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to any of the matters aforesaid.
(3) Where the defendant in any civil proceedings alleges that, in respect of any damages which may be awarded against him in those proceedings, he would be entitled to contribution from some other person if that other person were not exempted from liability by virtue of the preceding provisions of this section, the defendant may join that other...
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