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PI: Swift v Secretary of State for Justice [2013] EWCA Civ 193

The claimant (“C”) had been cohabiting with the deceased for 6 months when he was fatally injured by a 3rd party tortfeasor.

C’s dependency claim under the Fatal Accidents Act 1976 (“the Act”) was dismissed in the High Court on the grounds that she had been living with the deceased for less than 2 years immediately before his death. The claimant appealed to the Court of Appeal.C averred that s.1(3)(b) of the Act was incompatible with her rights under article 14 of the ECHR in conjunction with article 8, since it unjustifiably discriminated against persons who had been cohabiting for less than 2 years by excluding them from the class of family members entitled to claim damages for loss of dependency under the Act. Alternatively the claimant argued that it interfered with her right to respect for family life contrary to article 8(1) in a manner which was not justified under article 8(2).

In considering s.1(3) the CA made the following observations:

  • The legitimate aim of s.1(3) is to confer a benefit on dependants to recover damages in respect of their loss of dependency, while confining that benefit to those who had relationships of some degree of “permanence and dependence”;
  • There had to be 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;
  • Due to the social and economic implications of enlarging the class of dependants, Parliament should be afforded a generous margin of discretion.

Ultimately, the CA found that s.1(3)(b) was not incompatible with article 14 of the Convention in conjunction with article 8. It was a proportionate means of pursuing the legitimate aim of the statute. There was no obviously right answer, but the decision made by Parliament was not manifestly without reasonable foundation and was one which it was entitled to make. It followed that even if article 14 was engaged, the difference in treatment of cohabitees on the basis of 2 years' cohabitation was justified.

The same reasoning inevitably led to the conclusion that, even if s.1(3)(b) amounted to an interference with the claimant's right to respect for her family life in breach of article 8(1), it was justified under article 8(2).

/ 1st Apr 2013


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