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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Lancashire Teaching Hospitals NHS Foundation Trust& Ors (Rev 2) [2017] EWCA Civ 1916 (28 November 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1916.html Cite as: [2017] EWCA Civ 1916, [2017] WTLR 1469, (2018) 162 BMLR 1, [2018] PIQR P5, [2018] QB 804, [2018] 2 WLR 1063, [2017] WLR(D) 799 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Edis
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE McCOMBE
and
SIR PATRICK ELIAS
(sitting as a Judge of the CoA Civil Division)
____________________
JACQUELINE SMITH (suing in her own right and as the surviving partner of JOHN BULLOCH, deceased) |
Appellant |
|
| - and - |
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LANCASHIRE TEACHING HOSPITALS NHS FOUNDATION TRUST (1)-and- LANCASHIRE CARE NHS FOUNDATION TRUST (2)-and- THE SECRETARY OF STATE FOR JUSTICE (3) |
Respondents |
____________________
Vikram
Sachdeva QC, Stephen McNamara and Catherine Dobson (instructed by Slater and Gordon) for the Appellant
David Blundell (instructed by the Government Legal Department) for the Third Respondent
The First and Second Respondents did not appear and were not represented
Hearing date : 7 November 2017
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Sir Terence Etherton MR :
Jacqueline
Ann
Smith
("Ms
Smith"),
for a declaration that section 1A of the FAA should be so interpreted or for a declaration that it is incompatible with her rights under Article 8 of the Convention or under Article 14 read in conjunction with Article 8.
The legislative context
various
other persons, but not including a 2 years + cohabitee. The introduction of bereavement damages into the FAA was made by the Administration of Justice Act 1982 ("the 1982 Act"). The 1982 Act also extended the definition of "dependant", for the purposes of dependency damages, to include a 2 years + cohabitee. The resulting distinction between a dependency claim and a claim to bereavement damages in that respect was not discussed in Parliament at all during the passage of what became the 1982 Act. There is no evidential material which explains the reason for the distinction.
The factual background and the proceedings
Smith
and Mr John Bulloch lived in the same household as man and wife between March 2000 and the date of Mr Bulloch's death on 12 October 2011. They never married. It is accepted that their relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.
Lancashire
Teaching
Hospitals
NHS
Foundation
Trust
and
Lancashire
Care
NHS
Foundation
Trust
("the
NHS
Trusts").
Smith,
as a 2 years + cohabitee, brought proceedings against the
NHS
Trusts
for dependency damages under section 1 of the FAA. That claim was compromised and the
NHS
Trusts
have subsequently played no further part in the proceedings.
Smith
did not make a claim against the
NHS
Trusts
for bereavement damages under section 1A of the FAA. The Secretary of State for Justice was joined as the third defendant so that the claim for bereavement damages could be pursued. The amended Particulars of Claim state that no claim for such damages was made against the
NHS
Trusts
because, unlike the provisions for dependency damages under section 1 of the FAA, the express terms of section 1A(2)(a) of the FAA do not extend to 2 years + cohabitees.
The legislation
"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;
(c) any parent or other ascendant of the deceased;
(d) any person who was treated by the deceased as his parent;
(e) any child or other descendant of the deceased;
(f) any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;
(fa) any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;
(g) any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
(4) The reference to the former wife or husband of the deceased in subsection (3)(a) above includes a reference to a person whose marriage to the deceased has been annulled or declaredvoid
as well as a person whose marriage to the deceased has been dissolved.
(4A) The reference to the former civil partner of the deceased in subsection (3)(aa) above includes a reference to a person whose civil partnership with the deceased has been annulled as well as a person whose civil partnership with the deceased has been dissolved.
(5) …
(6) Any reference in this Act to injury includes any disease and any impairment of a person's physical or mental condition.
1A. — Bereavement.
(1) An action under this Act may consist of or include a claim for damages for bereavement.
(2) A claim for damages for bereavement shall only be for the benefit—
(a) of the wife or husband or civil partner of the deceased; and
(b) where the deceased was a minor who was never married or a civil partner —
(i) of his parents, if he was legitimate; and
(ii) of his mother, if he was illegitimate.
(3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.
(4) Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant).
(5) The Lord Chancellor may by order made by statutory instrument … amend this section byvarying
the sum for the time being specified in subsection (3) above."
The HRA
"3.— Interpretation of legislation.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect thevalidity,
continuing operation or enforcement of any incompatible primary legislation; and
(c) …
4.— Declaration of incompatibility.
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
(5) In this section "court" means —
…a puisne judge of the High Court.
(6) A declaration under this section ("a declaration of incompatibility")—
(a) does not affect thevalidity,
continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made."
The Convention
"Article 8 Right to respect for private and family life
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 wellbeing 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."
"Article 14 Prohibition of discrimination
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."
The Judge's judgment
v.
Secretary of State for Justice [2012] EWHC 2000 (QB), [2012] PIQR P21 (Eady J) and [2013] EWCA Civ 193, [2014] QB 373 (CA) ("Swift") and the judgment of Andews J in R (Steinfeld and Keidan)
v.
Secretary of State for Education [2016] EWHC 128 (Admin) ("Steinfeld").
Smith's
Article 8 rights are engaged, the limitation which precludes Ms
Smith
from recovering such damages does not interfere with those rights; (3) if it is an interference with those rights, it is justified; (4) the limitation is not within the ambit of Article 8, so as to engage Article 14; (5) if it is within the ambit of Article 8, it does not amount to unlawful discrimination within Article 14 because (a) Ms
Smith
lacks status for the purposes of Article 14, (b) Ms
Smith
is not in an analogous position to a widow, and (c) any difference in treatment is justified.
Smith's
case plainly involves a claim that Article 8 imposes a positive obligation to extend bereavement damages to 2 years + cohabitees and so a cautious approach was applicable. The Judge rejected the submission of a direct engagement of Article 8 for the reasons set out in paragraphs [75] and [76] as follows:
"75. If the Claimant's case involves a positive obligation then in my judgment it does not directly engage art.8 because there is no direct and immediate link between the measures sought by an applicant and her private or family life and no special link between the situation complained of and the particular needs of her private or family life. If there were, then the state would be required to enact a provision such as s.1A of the FAA and it is not alleged that this is the case. It has not been argued that, but for the enactment of s.1A, the UK is in breach of art.8. This is a measure which the state could choose to enact, or not, without consideration of the direct engagement of art.8. The question therefore is whether the measure is within the ambit of art.8.
76. I accept that the mere fact that the family life which is to be respected had come to an end by death does not mean that art.8 (or its ambit) is not engaged. The cases cited at [54(iii)] above and relied on by the claimant establish that proposition. It would however stretch the basis of those cases to extend them to hold that the bereavement damages are paid for a purpose either directly within art.8 or even within its ambit…"
v.
France [2001] ECHR 741 (2003) 36 EHRR 42, Ploski
v.
Poland [2002] ECHR 735 ("Ploski"), Znamenskaya
v.
Russia (2007) 44 EHRR 15, Yigit
v.
Turkey (2011) 53 EHRR 25 and
V
v.
Associated Newspapers and others [2016] EWCOP 21, all of which he distinguished.
"… It is not an award intended to mark society's respect for the relationship which the tortfeasor has destroyed but to require the tortfeasor to compensate the individual for its loss. It is a personal payment to the individual to compensate for loss and not a payment designed to promote any continuing family life. It is not related to private life at all."
"The payment is not a mark by society of thevalue
of the broken relationship, but is a payment required of a party who has caused a death through negligence or breach of an actionable statutory duty. It is part of the compensation payment for that fault. The state (as such) does not make any payment to anyone to compensate for the grief caused by the death of a partner."
v.
Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91 ("M"), R (on the application of Clift)
v.
Secretary of State for Work and Pensions [2006] UKHL 54, [2007] 1 AC 484 ("Clift") and Mathieson
v.
Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 ("Mathieson"). Having examined relevant parts of those cases, the Judge concluded (at [92]) that the law on ambit for Article 8 purposes is that stated by Lord Bingham in Clift at [13], who held as follows:
"Plainly, expressions such as "ambit", "scope" and "linked" used in the Strasbourg cases are not precise and exact in their meaning. They denote a situation in which a substantive Convention right is notviolated,
but in which a personal interest close to the core of such a right is infringed. This calls, as Lord Nicholls said in M, at para 14, for a
value
judgment. The court is required to consider, in respect of the Convention right relied on, what
value
that substantive right exists to protect."
" … if a measure does not engage art.8 it will often fall outside its ambit for the same reasons. In my judgment this is the case here. … The claimant expressly submits that the case is not about money but about recognition of her relationship. That being so, once I have concluded that the bereavement damages regime does not indicate any disapproval by the state of the way that she and the deceased chose to live, the complaint does not achieve the level of serious impact required to put it within the ambit of art.8. Alternatively, the absence of a right to compensation for her grief from the [NHS
![]()
Trusts]
is only tenuously linked to respect for the family life which she enjoyed with the deceased and not linked at all to her private life."
v.
Secretary of State for Business, Innovation and Skills [2015] UKSC 57, [2015] 1 WLR 3820, where she set out the four issues as follows:
"(i) does the measure have a legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?"
"the presumption appears to be that whether Convention rights are directly engaged or whether the infringement is of a right which is within the ambit of an Article of the Convention, the right will be of fundamental importance. The "fair balance" test involves measuring the interests of the community against the rights of the individual and appears to me to assume that either a Convention right will be directly engaged or that something so closely connected with such a right will be involved that it should be accorded the same degree of protection." [emphasis in the original]
v.
Secretary of State for Work and Pensions [2008] UKHL63, [20009] 1 AC 311, and Mathieson and Clift, the Judge concluded (at [101]) that it was clearly established by decisions binding on him that Ms
Smith
does have "other status" for the purposes of Article 14.
Smith
is in an analogous position to a widow for the purposes of the bereavement damages scheme in section 1A of the FAA. Having referred (at [103]) to the distinction drawn between those who are married and those who are not in several Strasbourg cases relied upon by the Secretary of State and to two cases decided in the Court of Appeal (Criminal Division) and commentary on them in the Criminal Law Review, the Judge concluded (at [104]) that Ms
Smith
is clearly in an analogous position to the survivor of a civil partnership or marriage. He said, as follows:
"This really follows from my finding on "other status". That status is not simply being unmarried, because that would not necessarily imply the existence of a relationship. The point is that she had an "other status" because she was an unmarried person living with a partner in a relationship closely analogous to marriage. I accept the force of the cases cited by the Secretary of State listed at [103] above which show that the ECtHR accepts that marriage has a special status, and that those who are not married may not be in the same position as those who are. However, these do not say that a married person is not in an analogous position to an unmarried person living with another as man and wife. They say that the position is different and may justify different treatment. … The situations are sufficiently similar to require discrimination to be justified if any rights within the ambit of art.8 are infringed by it. That is not a high threshold of similarity, and some differences are permitted between comparable positions which may remain analogous."
Smith
and a widow in her position is justified applying the four-fold justification test described by Baroness Hale in Tigere. In that connection, he referred to the earlier paragraphs [30]–[34] in his judgment, in which he had explained the Secretary of State's position as he understood it.
"109. … I have explained her position as I understand it at [30]-[34] above. I described it at [34] as having a "degree of incoherence". Why should a parent be able to recover for the loss of a child, but not the other way round? Is their love not equal, or anyway of equalvalue?
If 2 years + of cohabitation is a "bright line" rule adequate for s.1, why not for s.1A? If it is important to any degree to ensure that 2 year + cohabitees do not recover bereavement damages from tortfeasors, why does the Secretary of State preside over the 2012 Criminal Injuries Compensation Scheme whereby damages of the same kind are paid out of public funds after a death caused by a crime?
110. Why, in any event, does it serve any public interest to refuse to require insurers to make payments which, according to the Association of British Insurers response to the 2009 consultation, they are willing to make? If some such public interest can be found, what is the fair balance between it and the (assumed) rights of the 2 year + cohabitees to receive such payments?
111. I am unable to identify any legitimate aim which would justify the limitation of the availability of bereavement damages if the law required such a justification. It is therefore extremely difficult to apply the last three stages of the test which all assume that the aim of the provision under consideration can be identified. I do not consider that the provision supports the institution of marriage in any material way. The benefit is paid only after the marriage had been ended by death. It surely is fanciful to believe that couples may weigh in the balance when deciding how they wish to live the availability of bereavement damages should one of them die as a result of the actionable fault of someone who is good for the money or insured. In the modern United Kingdom such deaths are rare and not at the top of the list of factors to be considered when deciding whether to marry or not. A life insurance policy against such a risk with a benefit of £11,800 would cost next to nothing and would be the rational response to any worry of this kind, rather than marrying when otherwise that would not be the chosen course. If the support of marriage is the aim of the provision, why is it undermined by s.1 which makes dependency damages, which are much larger, available to those who have not married? …"
violated
Ms
Smith's
Article 8 rights. He said (at [113]) that he would have made a declaration of incompatibility because, even having regard to the wide powers to "read down" an offending provision, he would not have been able to do so in
view
of the clear provisions in section 1A, subsequent consideration of them by Parliament, and the need for Parliament to consider (if cohabitees were included in the right to bereavement damages) how an award would be divided where there is a qualifying cohabitee and a spouse and also children.
The appeal
Smith
does not appeal the decision of the Judge that there has been no direct infringement of Article 8.
Smith
and the rights protected by Article 8 is established.
Smith
says that the Judge ought, pursuant to section 3 of the HRA, to have interpreted section 1A(2)(a) in such a way as to extend the right to bereavement damages to 2 years + cohabitees; or, if that cannot be done, the court should make a declaration of incompatibility pursuant to section 4 of the HRA and award Ms
Smith
damages of £11,800 pursuant to section 8 of the HRA (that being the amount which she would have received had she qualified for bereavement damages).
Smith's
status and on the absence of justification. The Secretary of State has, however, issued a respondent's notice seeking to uphold the Judge's judgment that Ms
Smith's
situation does not fall within the ambit of Article 8, on the different and additional ground that (contrary to the
view
of the Judge) Ms
Smith
is not in an analogous position to the survivor of a civil partnership or marriage.
Discussion and conclusions
The ambit test
Smith
does not have to show that the State has infringed her rights under Article 8, but only that her complaint falls within the "ambit" of Article 8.
v
Austria (2001) 33 EHRR 14, in which the applicant complained that the refusal of the Austrian authorities to grant him parental leave allowance, on the ground that the allowance was only available to mothers, amounted to discrimination against him on grounds of sex in
violation
of Article 14, taken together with Article 8:
"22. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.
23. The applicant submitted that any financial assistance enabling parents to stop working in order to look after their children affected family life and therefore came within the scope of Article 8 of the Convention.
24. The Government argued that, on the contrary, the parental leave allowance did not come within the scope of Article 8 since, firstly, that provision did not contain any general obligation to provide financial assistance to parents so that one of them could stay at home to look after their children and, secondly, the parental leave allowance was a matter of welfare policy which was not to be included within the concept of family life.
25. The Court therefore has to determine whether the facts of the present case come within the scope of Article 8 and, consequently, of Article 14 of the Convention.
26. In this connection the Court, like the Commission, considers that the refusal to grant Mr Petrovic a parental leave allowance cannot amount to a failure to respect family life, since Article 8 does not impose any positive obligation on States to provide the financial assistance in question.
27. Nonetheless, this allowance paid by the State is intended to promote family life and necessarily affects the way in which the latter is organised as, in conjunction with parental leave, it enables one of the parents to stay at home to look after the children.
28. The Court has said on many occasions that Article 14 comes into play whenever "the subject-matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed" …
29. By granting parental leave allowance States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention; the allowance therefore comes within the scope of that provision. It follows that Article 14 – taken together with Article 8 – is applicable."
"expressions such as "ambit", "scope" and "linked" used in the Strasbourg cases … denote a situation in which a substantive Convention right is notviolated,
but in which a personal interest close to the core of such a right is infringed."
"4 It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol …, to identify the corevalues
which the provision is intended to protect. But the further a situation is removed from one infringing those core
values,
the weaker the connection becomes, until a point is reached when there is no meaningful connection at all. At the inner extremity a situation may properly be said to be within the ambit or scope of the right, nebulous though those expressions necessarily are. At the outer extremity, it may not. There is no sharp line of demarcation between the two. An exercise of judgment is called for … I cannot accept that even a tenuous link is enough. That would be a recipe for artificiality and legalistic ingenuity of an unacceptable kind."
Vikram
Sachdeva QC, for Ms
Smith,
that Lord Bingham's reference to a "core
value"
(in paragraph [4] of M) is more apposite than his reference to "the core of … a right" (in paragraph [13] of Clift) when considering whether the facts fall within the ambit of one of the substantive Convention provisions, for the purposes of Article 14. Infringement of the "core of a right" is more appropriate language in connection with an infringement of one of the provisions of the Convention conferring a substantive right rather than a positive modality which engages Article 14 because it is discriminatory. As Arden LJ said in Steinfeld at paragraph [61], in Strasbourg jurisprudence the core or
very
essence of a right represents the limits of the State's power to qualify or justify a departure from a right.
vein,
I agree with Mr Sachdeva that, even though the expressions "ambit" and "scope" are frequently used as synonymous in many of the Strasbourg and domestic authorities, references to "scope" as an alternative to "ambit" are problematic and best avoided in the context of the ambit test for Article 14 purposes. Reference to the "scope" of a Convention right, like reference to "the core" of "a right", is more appropriate when considering the engagement and infringement of one of the Convention provisions conferring substantive rights but is apt to mislead in the context of a breach of Article 14 when read in conjunction with such a provision.
various
descriptions of the ambit test, for the purposes of Article 14, in the several speeches in M is that the connection or link between the facts and the provisions of the Convention conferring substantive rights must be more than merely tenuous.
virtue
of section 3(1)(a) of the 2004 Act was incompatible with Article 14 read together with Article 8. Andrews J had refused the application for judicial review. She held that the bar did not fall within the scope or ambit of the limb of Article 8 relating to respect for family life because the claimants could marry and so enter into a legal relationship recognised by the State with all the rights, benefits and protections that follow from such recognition. She also held that any interference with the claimants' private life was even more tenuous as there was no evidence that they were subjected to humiliation, derogatory treatment or any other lack of respect for their private lives. Andrews J further held that, even if she was wrong about the ambit of Article 8, the Secretary of State was justified under Article 14 in maintaining the bar until more years' data was available on the formation and dissolution of civil partnerships. Such a "wait and see" policy did not disadvantage the claimants but it did avoid unnecessary disruption and wastage of resources and there was no consensus, either domestically or within the Convention States, as to the appropriate course to take.
view
that the Secretary of State was justified in taking time to evaluate the impact of the Marriage (Same Sex Couples) Act 2013 Act on civil partnerships before taking any further legislative steps to eliminate the difference of treatment between same-sex couples and opposite-sex couples.
values
of the substantive right in question and the infringement had an adverse impact. That submission was said to follow from the references in M and Clift to "impairment", "intrusion" and "infringement", in particular in paragraph [13] of Lord Bingham's speech in Clift. Beatson LJ explained as follows:
"149. There was no consensus in Mv
Secretary of State for Work and Pensions as to the approach to be taken to the "ambit" question. But in my judgment the fundamental explanation for the approach to "ambit" in Clift's case and M
v
Secretary of State for Work and Pensions is that, at the time of those decisions the European Court of Human Rights did not regard same-sex relationships as "family life". The judge (at [30]) considered that in M's case only Lord Mance (at [127]) regarded that to be the key factor. In fact, Lord Nicholls, a member of the majority and Baroness Hale, in her dissenting judgment, also considered that if the State chooses to legislate in support of or to promote family life that measure falls within the ambit of art.8: see Lord Nicholls at [27] and Baroness Hale at [109]-[110]. It is therefore only Lord Bingham and Lord Walker whose conclusions did not depend on same-sex relationships not at that time being recognised as family life.
150. It is true that Lord Bingham's language in Clift's case reflects the ratio in that case but, in my judgment, the language of impairment, intrusion and infringement were used to show how closely related to thevalues
protected by art.8 a measure has to be in the context of a substantive breach of art.8 and whether the matter is sufficiently close to the core
values
protected by art.8. If there is only a tenuous link to those core
values
that does not suffice. But in this case the measures in the 2004 and 2013 Acts are undoubtedly related to the core
values
of private and family life as shown by the Strasbourg jurisprudence which I have discussed. Accordingly, I do not consider that the domestic authorities can be regarded as requiring an additional requirement of concrete adverse impact other than deprivation of one of the means by which the State makes provision to recognise and protect those core
values."
values
is too tenuous. She said as follows:
"66. In my judgment, in [4] and [5] of his speech …, Lord Bingham was dealing only with the negative obligation in art.8 to desist from any lack of respect for family or private life. He identified certain corevalues
falling within art.8 … He held that the further a situation was removed from "infringing" those core
values,
the weaker the connection becomes until a point is reached when there is no meaningful connection with art.8 at all. In M, there was no impairment with family life or the core
values
which were the essence of family life.
67 In my judgment, that is why Lord Bingham only required there to be an adverse impact in the context of the negative obligations in art.8. On the case of positive obligations, the test is whether the link was too tenuous...
68 … In my judgement, the only test with which this Court needs to be concerned is this case is the test of link and whether the appellants' claim was too tenuous."
values
protected by Article 8 and is discriminatory and not justified. It is not necessary that the measure has any adverse impact on the complainant in a positive modality case other than the fact that the complainant is not entitled to the benefit of the positive measure in question.
"… the absence of a right to compensation for [the claimant's] grief from the [NHS
![]()
Trusts]
is only tenuously linked to respect for the family life which she enjoyed with the deceased and not linked at all to her private life."
very
closely connected with family life" and he cited a number of cases.
v.
United Kingdom (2011) 53 EHRR 6) which held (at [46]) that the House of Lords had taken too narrow a
view
of the ambit of A1P1 for the purposes of Article 14 and that it was not necessary therefore to consider whether the facts also fell within the ambit of Article 8.
very
closely connected with family life", that is neither part of the ratio of M nor consistent with Strasbourg authority.
v
Malta (2007) 44 EHRR 3 at O-17; R (A)
v.
Secretary of State for Health [2015] EWCA Civ 771, [2016] 1 WLR 331 at [31].
"… is not an award intended to mark society's respect for the relationship which the tortfeasor has destroyed but to require the tortfeasor to compensate the indivdual for its loss. It is a personal payment to the individual to compensate for loss and not a payment designed to promote any continuing family life. It is not related to private life at all."
Smith
is less
valued
by the State than would have been the case had she been married.
various
statements made by the Lord Chancellor, Lord Hailsham, and others in the House of Lords during the passage through Parliament of the 1982 Act, which amended the FAA by the insertion of section 1A. He particularly emphasised Lord Scarman's statement that a bereavement damages award is compensation for grief and not for loss of society; and that it amounts only to a recognition by the State that the fact of bereavement in the situation should qualify for some sympathetic recognition. It does not try to reflect and repair through a monetary award the true loss caused by the death, which would require an intrusive investigation of the precise nature of the relationship between the claimant and the deceased and the extent of the grief actually suffered.
valid
grounds for the conclusion that the link between the scheme for bereavement damages under section 1A of the FAA and Article 8 is too tenuous for that scheme to be within the ambit of Article 8 for the purposes of Article 14.
very
fact that bereavement damages are limited in section 1A(2)(a) to the spouse or civil partner of the deceased that bereavement damages are specifically intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners. It inevitably follows that the scheme for bereavement damages is properly regarded as a positive measure, or modality, by which the State has shown respect for family life, a core
value
of Article 8.
Smith's
case is that bereavement damages should be available to all surviving partners whether their loss was caused by the fault of a third party or not. That might be relevant to justification for a discriminatory limitation, but it is not the issue on this appeal, which is concerned with the ambit of Article 8 in the context of the particular bereavement scheme in section 1A of the FAA. Nor do I understand why the Judge thought it relevant to consider whether or not the denial of the award of bereavement damages implies that the grief felt by Ms
Smith
is less
valued
by the State than would have been the case had she been married to the deceased. The State having provided the particular modality of the bereavement scheme in section 1A of the FAA, the only question is whether the State has unlawfully discriminated against persons in the position of Ms
Smith
contrary to Article 14. Adverse impact is irrelevant.
v
Spain (2017) 65 EHRR 224 and Ploski are examples.
v
Spain concerned a claim by the applicant, who had cohabited with another man in a homosexual relationship for many years, for a pension under Spanish legislation as a surviving spouse following his partner's death. Spanish legislation expressly provided for a survivor's pension for spouses and the surviving partners of unmarried heterosexual couples who had been legally unable to marry. The ECrtHR held that the State, which had gone beyond its obligations under Article 8 in creating such a right, could not, in the application of that right, take discriminatory measures within the meaning of Article 14. Accordingly the facts fell within the ambit of Article 8, as promoting respect for family life, and Article 14 was applicable.
violation
of Article 8. Although it was not in dispute that the refusal to allow the applicant to attend the funerals of his parents constituted an interference with his right to respect for his private and family life, the ECrtHR expressly stated (at paragraph 32) that it found no reason to reach a different conclusion on that point.
v.
Secretary of State for Justice [2013] EWCA Civ 193, [2014] QB 373. The case concerned the question whether the claimant, who had lived with her partner for six months before his death due to the negligence of his employer, was entitled to a declaration that section 1(3)(b) of the FAA as amended was incompatible with her rights under Article 8 or under Article 14 in conjunction with Article 8 as she was unable to bring a claim for dependency damages since she had not been living with the deceased for 2 years prior to his death. Lord Dyson said (at [30]) that:
"the Article 8 issues raised here do not affect an important or indeed any aspect of the claimant's identity or an intimate aspect of family or private life"
Smith,
falls within the ambit of Article 8. I do so on the ground of the link with the core
value
of respect for family life in Article 8.
Smith
advances an additional argument that the facts fall within the ambit of Article 8 because her autonomous decision not to marry was an important part of her private life, which the modality of the bereavement damages scheme does not respect. It is not necessary in the circumstances to address that alternative argument.
Analogous position
v.
Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 Baroness Hale, with whom Lord Steyn and Lord Rodger agreed, set out (at [133]) five questions which arise in an Article 14 enquiry. The third question was whether the complainant and others put forward for comparison were in an analogous situation.
vein,
she suggested in AL (Serbia)
v
Secretary of State for the Home Department [2008] UKHL 42, [2008] 1 WLR 1434 (at [26]) that, unless there are
very
obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification. That approach supports the Judge's observation (at [104]) that "some differences are permitted between comparable positions which may remain analogous".
Smith
is not in an analogous position to a widow because it is a well-established and consistent feature of the Strasbourg case law that unmarried partners are not in an analogous position to married persons. The Judge rejected that argument. He was right to do so.
v.
United Kingdom (1987) 9 EHRR 203, Shackell
v.
United Kingdom (appn no. 45851/99, unreported, decision of 27 April 2000), Burden
v.
United Kingdom (2008) 47 EHRR 38 and
Van
der Heijden
v.
The Netherlands (2013) 57 EHRR 13. The distinction made in those authorities between spouses and civil or registered partners, on the one hand, and other couples, on the other hand, is well illustrated by the following statement of the ECrtHR in
Van
der Heijden at [69]:
"The legislature is entitled to confer a special status on marriage or registration and not to confer it on other de facto types of cohabitation. Marriage confers a special status on those who enter into it; the right to marry is protected by art. 12 of the Convention and gives rise to social, personal and legal consequences. Likewise, the legal consequences of a registered partnership set it apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of such a legally binding agreement between the applicant and Mr A renders their relationship, however defined, fundamentally different from that of a married couple or a couple in a registered partnership."
view
of the many cases, both Strasbourg and domestic, in which it has been held or agreed by the parties that unmarried couples are, in the particular context, in an analogous position to a married couple: for example, Re G [2008] UKHL 38, [2009] 1 AC 173 especially at [132]-[133], Sahin
v
Germany (2003) 36 EHRR 765, PM
v
United Kingdom (2006) 42 EHRR 45 and Re Brewster [2017] UKSC 8, [2017] 1 WLR 519.
v
Secretary of State for Defence [2009] EWCA Civ 39, [2009] ICR 762, in which the Court of Appeal decided that the claimant unmarried partner of a deceased Royal Navy officer was (subject to justification) in an analogous position to a spouse for the purposes of Article 14 in conjunction with A1P1 in the context of a war pension. As Hooper LJ said in his judgment, with which the other members of the court agreed:
" … the decision whether a married and unmarried couple are in an analogous situation must be made in the light of the scheme under examination. By the end of 2003 unmarried couples were being treated substantially the same as married couples for the purposes of the occupational pension scheme and the government had announced that it would by 2005 be treating them the same for the purposes of the 2005 Order. This distinguishes the present case from the situation in Burden's case 47 EHRR 857. Thus in 2004 it would, in myview,
be wrong to say that they were not, in the context of armed forces benefits, in an analogous position for the purposes of article 14 …"
Smith,
who was in a stable and long term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, is sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of Article 14 in conjunction with Article 8. In the context of this particular scheme, it is not the special legal status and legal consequences of marriage and civil partnership that are material, in the sense of providing a rational distinction with other people and relationships: cf, for example, Burden, in which the ECrtHR rejected the complaint of two unmarried sisters, who had lived together all their lives, that the liability to inheritance tax payable on the death of one of them, which would not be faced by the survivor of a marriage or civil partnership, would
violate
their rights under Article 14 read with A1P1. Rather, it is the intimacy of a stable and long term personal relationship, whose fracture due to death caused by another's tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees.
Reading down/incompatibility
Smith
contends that, in order to make section 1A of the FAA compliant with the Convention, the court should declare, pursuant to section 3 of the HRA, that section 1A(2)(a) is to be interpreted as though it extends to 2 years + cohabitees.
very
wide and can require a court to read in words which change the meaning of the enacted legislation. The only limitations are that the court cannot adopt a meaning which goes against the grain of the legislation, that is to say which is inconsistent with a fundamental feature of the legislation, and the court cannot make decisions for which they are not equipped: Ghaidan at [33].
Smith's
period of cohabitation exceeded the two years mentioned in section 1. If, however, section 1A was to be looked at afresh in the light of Article 8 in conjunction with Article 14, Parliament might determine a different length of qualifying period on policy grounds.
Damages
Smith,
abandoned the claim to damages in the light of section 6 but reserved the right to attack the
validity of section 6 in any subsequent proceedings before the ECrtHR.
Resolution of the appeal
Lord Justice McCombe :
Sir Patrick Elias :