Ismail Ali Pirzada

Student Number: 180245503

Legal System and Method
12/03/2019
Case Note: Swift v Secretary of State for Justice [2013] EWCA Civ 193

Case Name and Citation;

Swift v Secretary of State for Justice [2013] EWCA Civ 193
Court and Judges;
Court of Appeal (Civil Division): Lewison, Kim and CM Treacy LJJ
Parties;
Appellant: Laurie Swift.
Respondent: Secretary of State for Justice.

Material Facts;
The claimant and Mr. Winters were in a state of cohabitation for a period of six months
until the point of the latter suffering a fatal workplace injury. The claimant was carrying an
unborn child at the time, who was eventually delivered after the death of Mr. Winters. This
particular child succeeded in rendering a claim for the loss of dependency as per Section 1(3)(e)
of the Fatal Accidents Act of 1976 (at 3). Due to the tenure of married cohabitation between the
claimant and Mr. Winters not spanning beyond two years prior to the latter’s death, the claimant
was unable to do the same as per Section 1(3)(b) of the Fatal Accidents Act of 1976 (at 3). The
claimant further suggested that the section in question was inherently incompatible with her
given, protected rights under Article 8 and Article 14 of the Human Rights Act (HRA) of 1998,
which respectively pertain to the securing of rights and freedoms sans discrimination and the
right to respect for family and private life (at 4).

Question of Law/Issues;
It would be unfair to declare that there existed a finite amount of permanence of a
relationship between the claimant and her spouse. Such a declaration fails to discern between a
spontaneous relationship and a serious, familial one. The statute dictates that the claimant resides
in the same property as the deceased individual as the theoretical wife or husband of the
deceased individual, thereby removing the possibility of the relationship being casual in nature.
(at 18). Nevertheless, such a peculiarity as noted by Parliament does nothing to alleviate the
burden on the claimant as per Section 1(3) of the Fatal Accidents Act of 1976 to prove beyond a
reasonable doubt that they had resided on the property as a spouse of the deceased individual.
The position stated by the Department of Constitutional Affairs, the Ministry of Justice, and the
House of Commons Justice Committee was that the exclusion of cohabitants of less than two
years was unfair (at 20). The primary issue, thus, revolves around whether or not a declaration of
incompatibility may be made in relation to both the Fatal Accidents Act of 1976 and the Human
Rights Act of 1998.

Decision;
The Court of Appeal deemed that Section 1(3)(b) of the Fatal Accidents Act of 1976 was
in no way, shape, or form incompatible with Article 14 of the Human Rights Act (HRA) of 1998
in concurrence with Article 8 of the same convention (CM Treacy LLJ at 41). The claimant was
unable to assume the status of loss of dependency.

Detailed Reasoning for the Decision;

The primary query of the Court of Appeal juggled was the degree of permanence by
which a relationship had proceeded for the sake of defining and conferring the right of damages
to those who suffered from loss of dependency. The rhetoric developed by the European Court of
Human Rights (ECHR) formulates the doctrine of suspect grounds of discrimination. Such
grounds include racial identity, gender, and sexual orientation; i.e demographic factors out of the
control of the individual (at 24). The United Kingdom’s Human Rights Act (HRA) of 1998 was
specifically formulated for the sake of aligning domestic policy with the jurisprudence emanating
from the ECHR in Strasbourg.
The question arisen refers to whether the length of duration of cohabitation would count
as a suspect ground of discrimination, and if so, the manner by which the permanence of the
cohabitation ought to be assessed. In the case of Draon v France, it was held that the domestic
legislature of a particular jurisdiction should command greater weight in matters wherein mass
public opinion is likely to lie along a massive spectrum (at 27). Other case law such as the
ECHR’s verdict in Mosley v United Kingdom added credence to such an opinion. The claimant
directly questions the prerogative of the UK’s state machinery to provide legal mediation
between particular individuals (at 29). An assessment of Article 8 and Article 14 of the HRA of
1998 revealed that the claimant’s lack of loss of dependency status did not infringe on the
security and privacy of both her personal identity and private/family life. Furthermore, the Court
of Appeal suggested that questioning the degree of permanence of cohabitation was a
phenomena unrelated to and beyond the stated scope of the prior-mentioned suspect grounds of
discrimination, allowing Parliament a degree of discretion on codifying the exact amount of time
necessary for the status of loss of dependency to be conferred. Additionally, sovereign members
of the Council of Europe do not possess a mass consensus as to the defining parameters of a
cohabitating relationship (at 29).
As per the judges, while the request to establish credibility of permanence of cohabitation
in order to differentiate on the seriousness of a relationship may seem valid, there exists no
particular legitimacy for the placing of a threshold of time of cohabitation for the sake of
deciding eligibility towards financial damages in the case of loss of dependency. The mere
statutory baseline of merely living as a spouse with the deceased individual either at the time of
death or immediately prior fulfills a degree of permanence (at 18). Thus, the enhanced threshold
of the cohabitation lasting two years is not required for the sake of meeting the legitimate aim
(i.e the awarding of damages) and can be considered as a disproportionate means of seeking
financial reward. As per the discretion of Parliament, if provisions are made for a select few
cohabitants then the legitimacy to discern such relationships on any parameter apart from the
length of the relationship does not exist (at 18). Parliament was thus allowed to define the exact
tenure of time by which permanency of such a relationship could be established, with the result
being the stated minimum two-year cohabitation period as the benchmark for receiving damages
under the Fatal Accidents Act of 1976. The stated two-year threshold was not arrived at by
random chance, and thus Parliament fully understood that cohabitation periods of lesser time
period than the given threshold were subject to a lack of the ability to claim damages under the
loss of dependency (at 17).
Ratio Decidendi;
The claimant’s responsibility was to display a concrete connection between the two-year
threshold of dependency claims and its subsequent, potential infringement on her familial and
private lives. However, familial life is not applicable and was deemed as concluded in between
the claimant and Mr. Winters due to the death of the claimant’s spouse (at 42).
Additionally, an assessment of the circumstances did not suggest a discernible
connection between an infringement of private life (as per Article 8 of the HRA of 1998) and the
lack of loss of dependency status. Even if the claimant’s child were to be used as an example, the
successful awarding of damages to the offspring is deemed as satisfactory due to the relationship
between the child and the claimant (at 30).
Furthermore, Article 14 of the HRA of 1998 would not have applied in this instance due
to the permanence of cohabitation not being defined as a ground of status-based discrimination;
as opposed to legitimate grounds such as gender and/or race (at 21). The claimant is simply an
invalid claimant for dependency damages as per Section 1 of the FAA of 1976. The Court of
Appeal moreover suggested that should both Article 8 and Article 14 be invoked, Parliament still
held the legitimacy necessary to restrict the liability of civil wrongdoers in relation to those who
were not amongst the main sufferers of that particular wrongdoing; i.e Mr. Winters’ employers
(at 17).
The judges directed that Section 1(3)(b) of the Fatal Accidents Act of 1976 remained
compatible with Article 14 of the HRA while assessing Article 8 concurrently. They also stated
that while claims to damages and their relation to permanency of cohabitation may blur the
effectiveness of social mores, Parliament enjoyed the luxury and also a degree of viability in
defining the initial threshold of permanence (at 17).