Swift v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeMaster of the Rolls,Lord Justice Lewison,Lord Justice Treacy
Judgment Date18 March 2013
Neutral Citation[2013] EWCA Civ 193
Docket NumberCase No: A2/2012/1918
CourtCourt of Appeal (Civil Division)
Date18 March 2013
Between:
Laurie Swift
Appellant/Claimant
and
Secretary of State for Justice
Respondent/Defendant

[2013] EWCA Civ 193

Before:

Master of the Rolls

Lord Justice Lewison

and

Lord Justice Treacy

Case No: A2/2012/1918

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION

MR JUSTICE EADY

HQ11X02583

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Robert Weir QC (instructed by Slater and Gordon (UK) LLP) for the Appellant

Mr Jason Coppel (instructed by The Treasury Solicitor) for the Respondent

Master of the Rolls
1

The claimant appeals from the order of Eady J by which he dismissed her claim pursuant to section 4 of the Human Rights Act 1998 that section 1(3)(b) of the Fatal Accidents Act 1976 (as amended) (“the FAA”) is incompatible with her rights under article 14 in conjunction with article 8, alternatively article 8 alone, of the European Convention on Human Rights (“the Convention”). So far as material, section 1 of the FAA provides:

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;

………….

(e) any child or other descendant of the deceased;”

2

Section 1A(1) provides: “An action under this Act may consist of or include a claim for damages for bereavement.” Section 3(1) provides: “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.”

3

The facts can be shortly stated. The claimant had been cohabiting with Alan Lee Robert Winters for about 6 months when he was fatally injured in an accident at work as a result of the admitted negligence of a third party tortfeasor. Their child was born after his death. The child was able to make a claim for loss of dependency under section 1(3)(e) of the FAA. But since the claimant and Mr Winters had been living together as husband and wife in the same household for less than two years immediately before his death, she was not able to do so.

4

The claimant's primary case is that section 1(3)(b) is incompatible with her rights under article 14 in conjunction with article 8 of the Convention. In summary, she says that section 1(3)(b) unjustifiably discriminates against persons who have been cohabiting as husband and wife for less than two years, by excluding them (but not those who have been cohabiting for two years or more) from the classes of family members entitled to claim damages for loss of dependency under the FAA. Her alternative case is that section 1(3)(b) interferes with her right to respect for family life contrary to article 8(1) of the Convention alone and that this interference is not justified under article 8(2).

5

Article 8 of the Convention provides:

“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.”

6

Article 14 provides:

“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.”

7

The issues that arise in relation to the claimant's primary case are (i) whether the facts fall within the ambit of article 8 so as to engage article 14 (“the ambit issue”); (ii) whether as a cohabitant of less than two years, the claimant had “other status” within the meaning of article 14 (“the other status issue”); and (iii) whether, if article 14 is engaged and the claimant had “other status”, the difference in treatment of claimants based on the duration of their cohabitation by the FAA is objectively justified. The issues that arise in relation to the claimant's alternative case are (i) whether section 1(3)(b) of the FAA amounts to an interference with the claimant's right to respect for family life at all; and (ii) if it does, whether the interference is objectively justified pursuant to article 8(2).

8

In a careful and comprehensive judgment, the judge found against the claimant on all these issues. We heard full argument on each point. The justification defence advanced by the Secretary of State, if well-founded, is fatal to both the primary and alternative cases. For the reasons that I give in this judgment, I am satisfied that the difference in treatment is justified. I do not, therefore, find it necessary to deal with the submissions which were addressed to us on the ambit issue or the other status issue. I propose to say no more about them.

History of section 1(3) of the FAA and proposals for its reform

9

Before I come to the issue of objective justification, I should say something about the views that have been expressed about section 1(3)(b) from time to time and the proposals that have been made for its reform. As enacted in 1976, the FAA contained no provision for the right to claim damages for loss of dependency by cohabitants. At the committee stage of the Administration of Justice Bill, it was recognised that it was anomalous that an illegitimate child qualified as a dependant entitled to claim under the FAA, but the child's surviving dependant parent did not. But it is clear from the debates in Parliament that there were differences of opinion as to how this anomaly should be remedied and, in particular, which cohabitants should be eligible to claim and which should not. By the time of the report stage on 4 May 1982, the two year qualifying period for cohabiting couples had been included in the Bill. Lord Hailsham LC expressed the Government's position in these terms:

“Then there must, I think, be some degree of permanence about the relationship. The weight of the speeches made in Committee especially Lord Edmund-Davies's speech, related to these enduring relationships in which the actual status of marriage had not been achieved, but much else that is part and parcel of a marriage had been, and I have put in a specific period of years. ”

10

Thus it was that the present provisions in relation to cohabitants came to be enacted in the Administration of Justice Act 1982. But with the decline in the number of marriages and the corresponding rise in the number of couples who chose to cohabit as husband and wife without undergoing the formality of a marriage, the debate continued as to whether Parliament had struck the balance in the right place.

11

In November 1999, the Law Commission published its paper entitled “Claims for Wrongful Death” (Law Com No 263). This paper reviewed a number of areas of law in relation to claims for damages for wrongful death (including damages for loss of dependency and for bereavement). In the Executive Summary of its paper, the Law Commission said that it was recommending reform and that a key aim of its recommendations was “to modernise the existing legislation, so as to bring this area of the law into line with the values of modern society”. It added:

“The present law arbitrarily excludes from an entitlement to claim compensation for financial loss some people who were financially dependent on the deceased. Our proposed reform would remove that anomaly by adding a generally worded class of claimant to the present fixed list”.

12

At para 3.16 of the paper, the Commission referred to the position of (amongst others) cohabitants living together who did not satisfy the two year rule and said that these examples provided “powerful support for the view that the present list is too restrictive”. At para 3.18, they recommended that the list should be reformed. This they did by proposing in a new section 1(3)(h) a generally worded class of claimant defined as “any other person who was being wholly or partly maintained by the deceased immediately before the death or who would, but for the death, have been so maintained at a time beginning after the death”. It also recommended a new section 1(7):

“For the purposes of this Act a person shall be treated as being wholly or partly maintained by another person if the other person, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards his reasonable needs.”

It further recommended amendments to section 1A so as to identify those for whose benefit a claim for damages...

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