Legal system and methods: LA1031.
Case Note: Swift v Secretary of State for Justice  EWCA Civ 193
Guardianship (Missing Persons) Act 2017
Fatal Accidents Act 1976 1(3)
European Conventions on Human Rights article 8
Case Name & Citation:
Swift v Secretary of State for Justice  EWCA Civ 193
House of Lords, the Court of Appeal, Civil Division.
Lord Dyson MR, Lewison LJ, Treacy LJ
Appellant/Claimant: Laurie Swift
Respondent/Defendant: Secretary of State for Justice
· The claimant had been cohabiting with Alan Lee Robert Winters for about six months when he was fatally injured in an accident at work as a result of the admitted negligence of a third party tortfeasor.
· Their child was born after his death.
· The child was able to make a claim for loss of dependency under section 1(3)(e) of the 1976 Act.
· But since the claimant and Mr Winters had been living together as husband and wife in the same household for less than two years immediately before his death, she was not able to do so.
Question(s) of law/issue(s):
The issues that arise in relation to the Claimants primary case are;
· whether the facts fall within the boundaries of art 8 so as to engage art 14 (“the ambit issue”);
· whether as a cohabitant of less than two years, the Claimant had “other status” within the meaning of art 14 (“the other status issue”); and
· Whether, if art 14 is engaged and the Claimant had “other status”, the difference in treatment of Claimants based on the duration of their cohabitation by the FAA is objectively justified. The issues that arise in relation to the Claimant’s alternative case are
· (i) whether s 1(3)(b) of the FAA amounts to an interference with the Claimant’s right to respect for family life at all; and
· (ii) If it does, whether the interference is objectively justified pursuant to art 8(2).
In summary, the judge held as follows. First, it is legitimate for the legislature to take steps to limit the liability of tortfeasors for loss caused to individuals who are not the primary victims of the wrongdoing in question. Where the balance should be struck between the competing interests is a matter of social policy. Secondly, in assessing whether the measure is a proportionate way of meeting that legitimate aim, the legislature is entitled to a wide margin of discretion since (a) it does not involve discrimination on grounds such as sex and race as opposed to a matter of social and economic policy; (b) it concerns the question whether the state is under a positive obligation to provide legal remedies between individuals; and (c) it deals with an area where there is no effective consensus of treatment by the Member States. Thirdly, the two year period is not disproportionate or arbitrary: it is a bright line which provides a practical means of achieving a legislative objective which “is well within the broad margin of appreciation allowed in the context of decisions on social policy”.
Detailed reasons for the decision:
 There is little, if any, disagreement between the parties about this. The legitimate aim that is sought to be pursued by s 1(3) as a whole is to confer a right of action on dependents of primary victims of fatal wrongdoing to recover damages in respect of their loss of dependency, but to confine the right to recover damages to those who had relationships of some degree of permanence and dependence. The real question is whether the means chosen by the legislature to pursue this aim are proportionate. I bear in mind the important point that the burden lies on the Secretary of State to show that they are proportionate.
The cut off period was supported by an argument that it avoided disputes, but it did not. The burden of proof was the same. However a wide margin of appreciation was due to Parliament in making such judgements, and: ‘was entitled to decide that there had to be some way of proving the requisite degree of permanence and constancy in the relationship beyond the mere fact of living together as husband and wife. It was entitled to take the view that there cannot be a presumption in the case of short-term cohabitants, unlike that of married couples (section 1(3) (a)) or parents and their children (section 1(3) (e)) that the relationship is or is likely to be one of permanence and constancy. ‘The rule was a proportionate means of pursuing a legitimate aim.
Lord Dyson said: ‘the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim referred to at para 23 above. Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more.’
The Ratio Decidendi:
The claimant appealed against refusal of a declaration that the 1976 Act infringed her human rights. She had been cohabiting for six months, when her partner was killed in an accident at work for which a third party was liable. Because she had not been cohabiting for two years, her claim for loss of dependency was rejected.