Case Note Revision

Question 1

case name and citation

Answer 1

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

Question 2

courts and judges

Answer 2

CA (Civil division)

Lord Dyson MR, Lord Justice Lewison, Lord Justice Treacy

Question 3

parties

Answer 3

appellant: Laurie swit
respondent: secretary of state for justice

Question 4

material fact - claimant’s story

Answer 4

• 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

Question 5

material fact - fatal accidents act 1976

Answer 5

• act gives right to ‘dependants’ of deceased to claim damages under s 1(3)

Question 6

material fact - child in relation to 1976 act

Answer 6

• child born after death qualifies as dependant under s 1(3)(e)

Question 7

material fact - claimant in relation to 1976 act

Answer 7

• 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

Question 8

material fact - the appeal, argument 1

Answer 8

• 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

Question 9

material fact - the appeal , argument 2

Answer 9

• 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

Question 10

Q’s / issues of law before the court for her primary case

Answer 10

• 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

Question 11

Q’s / issues of law before the court for her alternative case

Answer 11

• 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

Question 12

decision

Answer 12

all 3 unanimously upheld decision of Eady J at first instance and dismissed appeal

Question 13

detailed reasoning for the decision of limiting her from damages due to under 2 yrs cohabitation

Answer 13

• 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”

Question 14

detailed reasoning for the decision of whether the measure is a proportional way of meeting that legitimate aim

Answer 14

• 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

Question 15

detailed reasoning for the decision of why breadth was accorded to the margin of appreciation

Answer 15

• 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

Question 16

detailed reasoning for the decision on requiring the 2 yr cohabitation qualifying period

Answer 16

• 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

Question 17

concluding of the detailed reasoning

Answer 17

• 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

Question 18

!!!first part of ratio decidendi

Answer 18

• 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

Question 19

!!!second part of ratio decidendi

Answer 19

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

Question 20

!!!third part + conclusion of ratio decidendi

Answer 20

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)

Question 21

name other cases where the issue of ‘margin of discretion’ is a common theme

Answer 21

• R (Carson) v Secretary of State for Work and Pensions 2005
• Draon v France 2006
• Mosley v UK 2011

Question 22

what is the main question with the ‘proportionality issue’ in this case?

Answer 22

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

Question 23

in what way can you critique the judgement?

Answer 23

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Question 24

how did this appeal arise?

Answer 24

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Question 25

can you refer to the application of precedent in this case?

Answer 25

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Question 26

what was the claimant ultimately seeking after Eady J refused her claim for damages as a dependant of her deceased boyfriend at the first instance of her trial?

Answer 26

a declaration of incompatibility - since HRA doesn’t allow overruling of its statutes and law, only allows issuing of decs of incompatibility, so argues for one here; in that s 1(3)(b) of FAA is incompatible w art 14 of HRA in conjunction w art 8

Question 27

some key words of the Fatal Accidents Act 1976 for interpretation?

Answer 27

(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;

Question 28

explain briefly some history and proposed reforms for the FAA 1976?

Answer 28

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Question 29

How has the case been received?

Answer 29

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Question 30

give examples of later cases following / being approved / distinguished by this

Answer 30

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