case name and citation
Swift v Secretary of State for Justice [2013] EWCA Civ 193
courts and judges
CA (Civil division)
Lord Dyson MR, Lord Justice Lewison, Lord Justice Treacy
parties
appellant: Laurie swit
respondent: secretary of state for justice
material fact - claimant’s story
- pregnant when her partner Alan Lee Robert Winters died in fatal accident at work as result of admitted negligence of third party
- had lived together 6 months, child born after death
material fact - fatal accidents act 1976
- act gives right to ‘dependants’ of deceased to claim damages under s 1(3)
material fact - child in relation to 1976 act
- child born after death qualifies as dependant under s 1(3)(e)
material fact - claimant in relation to 1976 act
- can’t claim as only lived w deceased for 6 months, + has to meet min requirement of 2 yrs living to become ‘dependant’ under s 1(3)(b)(ii)
- as wasn’t married, can’t claim either, as under s 1(3)(b)(iii) have to be married to become dependant + claim damages
material fact - the appeal, argument 1
- swift appeals to CA against trial judge decision where he dismissed her claim under s 4 of HRA 1998, that s 1(3)(b) of 1976 act was incompatible w her rights in art 14 of HRA, in conjunction w art 8
material fact - the appeal , argument 2
- swift appeals against trial judge (Eady J’s) decision of dismissing her use of art 8 alone of Convention for the Protection of Human Rights and Fundamental Freedoms
Q’s / issues of law before the court for her primary case
- whether facts fall within art 8, to include art 14 - (‘ambit issue’)
- whether claimant had ‘other status’ within art 14, as she lived w deceased for less than 2 yr required period to provide degree of constancy + permanence in their relationship - (‘other status issue’)
- whether, if art 14 is applied + claimant did have other status, the diff in treatment of claimants as result of duration of their cohabitation, by 1976 Act, is justified
Q’s / issues of law before the court for her alternative case
- whether her inability to claim damages according to s 1(3)(b) of 1976 act does cause interference w her right to respect for family life, in art 8 HRA
- if so, whether this interference can be justified objectively according to art 8.2
decision
all 3 unanimously upheld decision of Eady J at first instance and dismissed appeal
detailed reasoning for the decision of limiting her from damages due to under 2 yrs cohabitation
- Dyson MR: “it is legitimate for the legislature to the steps to limit the liability of tortfeasors for loss caused to individuals who aren’t the primary victims of the wrongdoing”
detailed reasoning for the decision of whether the measure is a proportional way of meeting that legitimate aim
- Dyson MR: “Legislature is entitled to a wide margin of discretion” as a result of the fact that it did not involve discrimination against any sex or race, as opposed to a matter of social and economic policy”
- one must consider if the state has positive obligation to provide legal remedies between individuals
- measure deals w an area where theres no effective consensus of treatment by member states
detailed reasoning for the decision of why breadth was accorded to the margin of appreciation
- state authorities are seen as better able to provide opinions on how best to secure the right to respect for private life of citizens, than the international judge, due to their closer links w their countries’ forces
detailed reasoning for the decision on requiring the 2 yr cohabitation qualifying period
- its ‘proportionate and not arbitrary’ as its a bright line providing a practical means of achieving a legislative objective, well within the broad margin of appreciation allowed in the context of decisions on social policy
- its a proportionate means of pursuing the legit aim as provides greater certainty on the scope of the 1976 act, as reduces need to conduct intimate + intrusive inquiries into nature and quality of a relationship in order to establish whether it satisfies some objective standard of permanency constant, + whether enough to justify protection under 1976 act
concluding of the detailed reasoning
- Dyson MR: was satisfied for above reasons that s 1(3)(b) of act isn’t incompatible w art 14 of ECHR in conjunction w art 8, as parliaments choice was one it was entitled to make
- even if s 1(3)(b) amounts to an interference w claimants right to resect her fam life in breach of art 8.1, interference is justified under art 8.2
!!!first part of ratio decidendi
- Parliament’s entitled to a wide margin of appreciation, and so 2 year requirement provides ‘some way of proving the requisite degree of permanency and constancy in the relationship, beyond the mere fact of living together as husband and wife’ - this fulfils its aim of making decisions justified + fair
!!!second part of ratio decidendi
Section 1(3) aims to give dependents of primary victims of fatal wrongdoings the right to recover damages in respect of their loss of dependency, only IF they could establish some degree of permanence in their relationship with the victim
!!!third part + conclusion of ratio decidendi
thus as the 2 yr qualifying period fulfilment does establish + demonstrate some degree of constancy and permanence in a relationship, its a proportionate means of pursuing legitimate aim of s (1)(3)
name other cases where the issue of ‘margin of discretion’ is a common theme
- R (Carson) v Secretary of State for Work and Pensions 2005
- Draon v France 2006
- Mosley v UK 2011
what is the main question with the ‘proportionality issue’ in this case?
whether the requirement of cohabitation as husband and wife for at least two years can be justified as a proportionate means of pursuing the legitimate aim - para 23
in what way can you critique the judgement?
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how did this appeal arise?
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