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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Matthews v Ministry of Defence [2002] EWCA Civ 773 (29th May, 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/773.html Cite as: [2002] EWCA Civ 773, [2002] 1 WLR 2621 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
The Hon. Mr Justice Keith
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE MUMMERY
and
LADY JUSTICE HALE
____________________
MATTHEWS | Respondent | |
- and - | ||
MINISTRY OF DEFENCE | Appellant |
____________________
Mr Richard Gordon, QC and Robert Weir (instructed by Bond Pearce for the Respondent)
Mr Conor Gearty (instructed by Linder Myers appeared on behalf of PTSD Group Action Claimants as Intervenors)
____________________
Crown Copyright ©
Lord Phillips MR
This is the judgment of the Court
Introduction
The claim
The statutory regime
“2. Liability of the Crown in tort
(1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:-
(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer;
and
(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property;
Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.”
“(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 if-
(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown 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, and
(b) the [Secretary of State] certifies that his suffering that thing has been or will be treated as attributable or service for the purposes of entitlement to an award under the royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member:
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 if-
(a) that thing is suffered by him 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; and
(b) [the Secretary of State] certifies as mentioned in the preceding subsection:
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 anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied.
(3) ……a Secretary of State, if satisfied that it is the fact:-
(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or
(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;
may issue a certificate certifying that to be the fact; and any such certificate shall, for the purpose of this section, be conclusive as to the fact which it certifies.”
“Subject to section 2 below, section 10 of the Crown Proceedings Act 1947 (exclusions from liability in tort in cases involving the armed forces) shall cease to have effect except in relation to anything suffered by a person in consequence of an act or omission committed before the date on which this Act is passed.”
“(a) by reason of any imminent national danger or of any great emergency that has arisen; or
(b) for the purposes of any warlike operations in any part of the world outside the United Kingdom or of any other operations which are or are to be carried out in connection with the warlike activity of any persons in any such part of the world.”
The certificate
“In so far as the personal injury of former Leading Ordnance Electrical Mechanic Alan Robert Matthews (service number D/M947091) is due to anything suffered by him as a result of exposure to asbestos during his service in the Royal Navy between 29 March 1955 to 15 March 1968, I hereby certify that his suffering that thing will be treated as attributable to service for the purposes of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 relating to the disablement or death of members of the service of which he was a member.”
The impact of the Convention
Article 2
“Art 2(1) of the Convention provides:
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”
In brief, the argument developed on behalf of the Claimant was as follows. Exposure to asbestos can result in the onset of diseases, such as mesothelioma, which can prove fatal. Art. 2(1) imposes a positive duty on the State to take appropriate steps to safeguard life. As an organ of the State, the Ministry was therefore obliged to take appropriate steps to protect the Claimant from losing his life as a result of exposure to asbestos while he worked on naval ships in circumstances where the failure to take those steps amounted to negligence or breach of statutory duty. As a result of the operation of section 10 and the proposed issue by the Secretary of State of the appropriate certificate, the Claimant’s conventional remedy for this alleged infringement of his right to life under Art. 2(1) has been removed and replaced by one which (for the reasons given earlier) is wholly inadequate.”
Article 6
“In the determination of his civil rights and obligations …everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
i) Article 6 does not apply to claims by servicemen. This gives rise to what the Judge has described as ‘the State service issue’.
ii) Mr Matthews has no ‘civil right’ which entitles him to a Court hearing under Article 6. This gives rise to what the Judge has described as ‘the procedural bar issue’.
iii) Mr Matthews is seeking to use the HRA to create a cause of action based on events that occurred before the Act came into force. This is not legitimate. This gives rise to what the Judge has described as ‘the retrospectivity issue’.
iv) If s.10 restricts rights under Article 6, it does so in a manner which serves a legitimate aim and is proportional. This gives rise to what the Judge has described as ‘the proportionality issue’.
We propose to consider these issues in a different order from that adopted by the Judge.
The State service issue
“….in the law of many Member States of the Council of Europe there is a basic distinction between civil servants and employees governed by private law. This has led the Court to hold that ‘disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6(1)’.”
“The criterion relating to the economic nature of a dispute, for its part, leaves scope for a degree of arbitrariness, since a decision concerning the ‘recruitment’, ‘career’ or ‘termination of service’ of a civil servant nearly always has pecuniary consequences. This being so, it is difficult to draw a distinction between proceedings of ‘purely’ or ‘essentially’ economic interest and other kinds of proceedings.”
“3. New criterion to be applied
64. To that end, in order to determine the applicability of Article 6(1) to public servants, whether established or employed under contract, the court considers that it should adopt a functional criterion based on the nature of the employee’s duties and responsibilities. In so doing, it must adopt a restrictive interpretation, in accordance with the object and purpose of the convention, of the exceptions to the safeguards afforded by Article 6(1).
65. The Court notes that in each country’s public service certain posts involve responsibilities in the general interest or participation in the exercise of powers conferred by public law. The holders of such posts thus wield a portion of the State’s sovereign power. The State therefore has a legitimate interest in requiring of these servants a special bond of trust and loyalty. On the other hand, in respect of other posts which do not have this “public administration” aspect, there is no such interest.
66. The Court therefore rules that the only disputes excluded from the scope of Article 6(1) of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depository of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police. In practice, the Court will ascertain, in each case, whether the applicant’s post entails – in the light of the nature of the duties and responsibilities appertaining to it- direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In so doing, the Court will have regard, for guidance, to the categories of activities and posts listed by the European Commission in its Communication of 18 March 1988 and by the Court of Justice of the European Communities.
67. Accordingly, no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6(1) since the Court intends to establish a functional criterion. Disputes concerning pensions all come within the ambit of Article 6(1) because on retirement employees break the special bond between themselves and the authorities; they, and a fortiori those entitled through them, then find themselves in a situation exactly comparable to that of employees under private law in that the special relationship of trust and loyalty binding them to the State has ceased to exist and the employee can no longer wield a portion of the State’s sovereign power.”
“…before the application of the new criterion in Pellegrin is engaged, the claim still has to be one to which the state service exclusion is capable of applying. The state service exclusion was said in Pellegrin to apply “to disputes raised by servants or the State over their conditions of service” [58]. Accordingly, the preliminary question which arises is whether a claim for damages for ill-health arising from harmful conditions at work can be classified as a claim relating to the employee’s conditions of service.”
“To put it bluntly, the Claimant’s claim is a claim in tort. It does not become a claim relating to the terms on which he is employed simply because the terms on which he is employed excludes his claim in tort.”
“The Court recalls that in the above mentioned Pellegrin judgment, it adopted a functional test for the purposes of determining the applicability of Article 6(1) to employment disputes involving public servants, based on the nature of the employee’s duties and responsibilities. An employment dispute is excluded from the scope of Article 6(1) if it concerns a public servant whose duties typify the specific activities of the public service in so far as he or she acts as the depository of public authority responsible for protecting the general interests of the State.”
The procedural bar issue
“Article 6(1) extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States.
Confirmation of this analysis is to be found in the fact that Article 6(1) does not require that there be a national court with competence to invalidate or override national law.”
“It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy.”
“The applicant complains that as a consequence of the issue of the Certificate under Section 10 of the Crown Proceedings Act 1947, he is effectively barred from pursuing civil proceedings against the Ministry of Defence for negligence. It is clear from Section 10 of the 1947 Act that the legislature sought to confer on the Crown immunity from liability in tort in respect of members of the armed forces who suffer injuries in the course of their service. However, such immunity only arises if inter alia the Minister of Pensions certifies that his injuries are attributable to service for the purposes of entitlement to an award under the Royal Warrant…. The effect of this provision is that the applicant’s right to sue in tort is effectively extinguished once such a certificate is issued and replaced by a pension entitlement. In the Commission’s view the substitution of a pension entitlement for an action in tort does not in principle give rise to an issue under Art 6(1) of the Convention. Such a system, for example, in the field of workman’s compensation for personal injuries may be found in the legal system of many State Parties to the Convention. These rules are commonly based on the principle that compensation should be independent of the frequently difficult proof of negligence. The Commission notes that the applicant does not allege a violation of Art 6 in so far as access to the courts in respect of his pension rights is concerned. It may therefore be left open whether these rights replacing the eventual tort claims are to be considered as “civil rights” in the sense of Art. 6(1).”
“It is not in dispute between the parties that, in general, the right to compensation for negligence constitutes a ‘civil right’ and therefore the right to bring a civil action for negligence is guaranteed by Art. 6(1). The question, however, arises whether there can be said to be a ‘civil right’ where such a right i.e. a right to compensation for negligence, has been expressly removed by a statutory immunity such as that conferred by s. 10 of the 1947 Act.”
“5. The Commission reaffirms the above view that, the substitution of a pension entitlement for a right to compensation in tort removes the ‘civil right’ to sue for purposes of this provision. It recalls that the concept of ‘civil rights’ is autonomous. Thus, irrespective of whether a right is in domestic law labelled ‘public’, ‘private’, ‘civil’ or something else, it is ultimately for the Convention organs to decide whether it is a ‘civil’ right within the meaning of Art 6(1). However, in the Commission’s view, Art 6(1) does not impose requirements in respect of the nature and scope of the relevant national law governing the ‘right’ in question. Nor does the Commission consider that it is, in principle, competent to determine or review the substantive content of the civil law which ought to obtain in the State Party any more than it could in respect of substantive criminal law. As it has stated in App. No 7151/75: SPORRONG AND LÖNNROTH v SWEDEN Series B:
Whether a right is at all at issue in a particular case depends primarily on the legal system of the State concerned. It is true that the concept of a ‘right’ is itself autonomous to some degree. Thus it is not decisive for the purposes of Art 6(1) that a given privilege or interest which exists in a domestic legal system is not classified or described as a ‘right’ by that system. However, it is clear that the Convention organs could not create by way of interpretation of Art. 6(1) a substantive right which has no legal basis whatsoever in the State concerned. (Commission’s Report, para. 150: see also App. No 8282/78, 21 D&R 109; App No 7598/76 KAPLAN v UNITED KINGDOM 4 E.H.R.R. 64 para 134).
It follows, therefore, that the State does not bear the burden of justifying an immunity from liability which forms part of its civil law with reference to a ‘pressing social need’ as contended by the applicant.
6. On the other hand, the Commission recognises that Art. 6(1) must be read in the light of the rule of law referred to in the preamble, of which the principle whereby a civil claim must be capable of being submitted to a judge, is an integral part (see GOLDER v UNITED KINGDOM 1 EHRR 524 para 35). Were Art 6(1) to be interpreted as enabling a State Party to remove the jurisdiction of the courts to determine certain classes of civil claim or to confer immunities from liability on certain groups in respect of their actions, without any possibility of control by the Convention organs, there would exist no protection against the danger of arbitrary power (see mutatis mutandis GOLDER judgment, para 35).
7. In recognition of these principles the Commission has indicated that the jurisdiction of the courts cannot be removed altogether or limited beyond a certain point (KAPLAN v UNITED KINGDOM, para 162). Similarly, the Commission has emphasised that ‘a real threat to the rule of law could emerge if a state were arbitrarily to remove the jurisdiction of civil courts to determine certain classes of civil action App. No 8225/78 ASHINGDANE v UNITED KINGDOM (1984) 6 E.H.R.R. 69, para 93). These principles apply not only in respect of procedural limitations such as the removal of the jurisdiction of the court, as in the ASHINGDANE case, but also in respect of a substantive immunity from liability as in the present case. The question, therefore, arises in the present context, whether s.10 of the 1947 Act constitutes an arbitrary limitation of the applicant’s substantive civil claims.”
“…the rules on immunity from jurisdiction of, inter alia, international organisations prevent claims concerning substantive rights, which exist as such under German law, from being raised and enforced against the privileged persons in German court proceedings, unless they waive their immunity. In these circumstances, it is merely a procedural bar preventing the possibilities of bringing potential claims to court.”
“……the proceedings which the applicant intended to pursue were for damages for a cause of action well known to English law. The Court does not accept the Government’s plea that because of the operation of State immunity she did not have a substantive right under domestic law. It notes that an action against a State is not barred in limine: if the defendant State does not choose to claim immunity, the action will proceed to a hearing and judgment, as occurred with the first discrimination action brought by the applicant.
The Court is, therefore, satisfied that the grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar, preventing the applicant from bringing her claim before the Industrial Tribunal.”
“The applicants’ grievance under Article 6(1) is in essence directed against the limitation of liability set out in section 76(1) of the Civil Aviation Act 1982. Framed in this way their grievance does not bring into play Article 6 or Article 13. As the Commission pointed out in its admissibility decisions, the effect of section 76(1) is to exclude liability in nuisance with regard to the flight of aircraft in certain circumstances, with the result that the applicants cannot claim to have a substantive right under English law to obtain relief for exposure to aircraft noise in those circumstances. To this extent there is no ‘civil right’ recognised under domestic law to attract the application of Article 6(1).”
Is S.10 of the 1947 Act procedural or substantive?
“(1) This Act shall not apply to an act done for the purpose of safeguarding national security or of protecting public safety or public order,
(2) A certificate signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for a purpose mentioned in subsection (1) shall be conclusive evidence that it was done for that purpose.”
“The substance of these Amendments is this, and I think that it is valuable. It is quite plain that a soldier does not lose his right of action against a fellow soldier through whom he has been injured, unless the Minister of Pensions certifies that the injury he has sustained is attributable to war service, or that he can get a pension. In other words, we must see that before we deprive a man of his right of action we give him a co-relative right, by way of pension.”
“Plainly his right to sue, i.e. the Claimant’s right to claim his preferred remedy of damages for exposure to asbestos in circumstances amounting to negligence or breach of statutory duty, has been extinguished. But does the extinguishment of that right mean that he did not thereafter have the right not to have been exposed to asbestos in circumstances amounting to negligence or breach of statutory duty? If, after the passing of the 1947 Act, he had the primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty, section 10 merely extinguished his secondary right to claim damages for its breach, and that would amount merely to a procedural bar on his secondary right to claim his preferred remedy for breach of his primary right.
The structure of the 1947 Act shows that after its enactment the Claimant did indeed have the primary right not to be treated in a way which amounted to tortious conduct. The Crown’s previous immunity from liability in tort (whatever its extent may have been) was removed by section 2 of the 1947 Act. Thereafter the Crown could be liable in tort. Not merely did the Crown then owe, for example, a duty of care in appropriate circumstances, but if it broke that duty it could be sued. What section 10 did was simply to prevent the Crown being sued if it broke that duty in respect of members of the armed forces. Otherwise, section 10 would simply have provided that section 2 was not to apply to claims in tort brought by members of the armed forces against the Crown or against other members of the armed forces.”
Article 1 of the First Protocol to the Convention
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest.”
Section 3 and a purposive interpretation
“Clause 10 is another Clause to which the attention of the House ought to be directed, because it contains a special exemption, or exclusion, in the case of claims between members of the Armed Forces in respect of personal injury which they have sustained while on duty as members of the Forces, or on Service premises. Here, again, I think Members will appreciate the special position which exists. For instance, it is necessary in the course of Service training, in order to secure the efficiency of the Forces, to exercise them in the use of live ammunition, in flying in close formation and, in the Navy, in battle conditions, with, perhaps, destroyers dashing about with lights out, and so on. These operations are highly dangerous and, if done by private citizens, would, no doubt, be extremely blameworthy, but it is impossible to apply the ordinary law of tort in regard to them, or make the Crown liable for any injury which, unhappily, results.”
“Such certificate shall not, however, be issued in any event unless the Secretary of State is satisfied that the circumstances in which the death or personal injury occurred were those of warlike conditions.”
The retrospectivity issue
The proportionality issue