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Matthews (Appellant) v. Ministry of Defence (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Ministry of Defence (Respondents)
THURSDAY 13 FEBRUARY 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hope of Craighead
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Matthews (Appellant) v. Ministry of Defence (Respondents) UKHL 4
LORD BINGHAM OF CORNHILL
1. The first question in this appeal by Mr Matthews is whether in English law he has what is to be regarded, for purposes of article 6 of the European Convention on Human Rights, as a "civil right" to claim damages for tort against the Ministry of Defence. If that question is answered in his favour two further questions arise: whether section 10(1) of the Crown Proceedings Act 1947 infringes Mr Matthews' right guaranteed by article 6 to a fair trial of that claim, and whether (if so) such infringement can be justified.
2. I am indebted to my noble and learned friend Lord Walker of Gestingthorpe for his summary of the facts and the history of the proceedings, his recitation of the relevant provisions of the 1947 Act and the Convention and his account of the most important Strasbourg jurisprudence, none of which I need repeat. I can turn directly to the first question expressed above.
3. There is much common ground between the approaches of the parties to this question. It is recognised, first, that the expression "civil rights" in article 6 of the Convention is autonomous: König v Federal Republic of Germany (1978) 2 EHRR 170 at 192-193, paragraph 88. This means that the concept of a "civil right" cannot be interpreted solely by reference to the domestic law of the member state. It is the view taken of an alleged right for Convention purposes which matters. But, secondly, the Strasbourg case law is emphatic that article 6(1) of the Convention applies only to civil rights which can be said on arguable grounds to be recognised under domestic law; it does not itself guarantee any particular content for civil rights in any member state: see, for example, Z v United Kingdom (2001) 34 EHRR 97 at 134-135, 137, paragraphs 87, 98. Thus for purposes of article 6 one must take the domestic law as one finds it, and apply to it the autonomous Convention concept of civil rights. It is evident, thirdly, that the Strasbourg jurisprudence has distinguished between provisions of domestic law which altogether preclude the bringing of an effective claim (as in Powell and Rayner v United Kingdom (1990) 12 EHRR 355 and Z v United Kingdom (2001) 34 EHRR 97) and provisions of domestic law which impose a procedural bar on the enforcement of a claim (as in Stubbings v United Kingdom (1996) 23 EHRR 213, Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 and Fogarty v United Kingdom (2001) 34 EHRR 302). The European Court has however recognised the difficulty of tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, acknowledging that it may be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy: see Fayed v United Kingdom (1994) 18 EHRR 393 at 430, paragraph 67. An accurate analysis of a claimant's substantive rights in domestic law is nonetheless the first essential step towards deciding whether he has, for purposes of the autonomous meaning given to the expression by the Convention, a "civil right" such as will engage the guarantee in article 6.
4. Few common law rules were better-established or more unqualified than that which precluded any claim in tort against the Crown, and since there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available: Feather v R (1865) 6 B & S 257 at 295-297, 122 ER 1191 at 1205-1206; Robertson, Civil Proceedings By and Against the Crown (1908), pages 350-351. The potential injustice of this rule was mitigated in several ways: by permitting actions against the personal author of the injury to the claimant and by the practice of the Crown in standing behind its delinquent servant (if he had been acting in the course of his duty) and accepting responsibility for any damages awarded (ibid, and see Mulcahy v Ministry of Defence  QB 732 at 740); by making provision for the payment of pensions to members of the services injured by other members in the course of their duties, as more fully described by my noble and learned friends Lord Hope of Craighead and Lord Walker; and, in cases where the individual author of the claimant's injury could not be identified, by appointing a nominee defendant to enable the claim to proceed.
5. Despite these palliatives, however, the Crown's position as litigant became the subject of strong criticism and in 1921 the Lord Chancellor and the Law Officers were agreed that a change should be effected and that legislation should be introduced as soon as a bill could conveniently be prepared. One of the changes expressly envisaged was that the Crown should become liable to be sued in tort. A very strong committee, chaired by the Lord Chief Justice, was accordingly appointed to propose such amendments of the law as the committee might consider advisable and feasible having due regard to the exceptional position of the Crown and to prepare a bill. In 1924 the committee's terms of reference were modified and it was asked to prepare a bill to provide (among other things) that the Crown should become liable to be sued in tort on the assumption that that alteration in the law was both desirable and feasible.
6. The committee in due course annexed its proposed bill to a brief report dated February 1927: Crown Proceedings Committee: Report (Cmd 2842). In clause 11 of the draft bill, under the heading "Substantive Rights", it was provided that "Subject to the provisions of this Act, the Crown shall, notwithstanding any rule of law to the contrary, be liable in tort". This provision was however subject to a saving in clause 29(1)(g) providing that:
Thus in this restricted field the immunity of the Crown was to survive, subject to the palliatives already noted.
7. But the proposed bill was not enacted and in 1946 one of the palliatives noted above, the practice of appointing a nominee defendant in tort actions against whom damages could be awarded, was disapproved by the House of Lords in Adams v Naylor  AC 543, a decision followed shortly thereafter by the Court of Appeal in Royster v Cavey  KB 204. Thus in a case (such as the present) in which the claimant could identify no individual Crown servant as responsible for causing him injury, he would have no right to redress save under any relevant pension arrangements. In both these decisions it was strongly urged that the law be changed, and they greatly strengthened the pressure for reform. But in neither case was the injured plaintiff a member of the armed services: in the first case the victims were children playing on a beach where mines had previously been laid, in the second a factory worker injured on her way to work.
8. The Crown Proceedings Bill 1947 was based on the draft bill of 1927 but with modifications of both substance and form. It was introduced into the House of Lords, where it was amended. What became clause 2 (in Part I, "Substantive Law") provided for the general liability of the Crown in tort. This clause of the bill was in the same terms as the enacted section 2. But what became clause 10, making special provision for the armed services, read as follows (as amended in the House of Lords, before the bill went to the House of Commons):
The effect of clause 10(1) is clear. Where a member of the armed forces of the Crown while on duty as such kills or injures another member of the armed forces who is either on duty or on some land, premises, ship, aircraft or vehicle used for the purposes of the armed forces, no liability in tort shall arise against the Crown. I shall, to avoid wearisome repetition, refer to these as "exempted claims". To them the old common law rule was to continue to apply. The member of the armed forces who actually caused the death or injury was also to be exempt from liability, unless the act or omission causing the death or injury was not connected with the execution of that person's duties as a member of the armed forces. In that respect the effect of the clause was to restrict the common law rights of the injured serviceman. But such claims were not common, perhaps because the doctrine of common employment effectively precluded them: Mulcahy v Ministry of Defence  QB 732 at 750.
9. The effect of clause 10(2) was to exempt the Crown and any officer of the Crown from any tortious liability as (primarily) occupier.
10. Clause 10(3), which had no equivalent in the draft 1927 bill, for obvious historical reasons, was added by amendment in the House of Lords, and attempted to address the potential injustice to a defendant who would have been entitled to contribution from another party had that party not been exempted from liability under the provisions of sub-clauses (1) and (2). The sub-clause envisaged that such exempted party could be joined as a party even though nothing could be claimed against him. This provision was deleted in the House of Commons and did not appear in the statute as enacted. But it shows that sub-clauses (1) and (2) were regarded as exempting the Crown and its servants from tortious liability in the case of exempted claims.
11. Clause 10(4) as initially drafted contained the only certification provision in the clause. It enabled the relevant minister to certify conclusively that a person (whether the person causing the death or injury or the person suffering it) was or was not on duty or that land, premises etc were or were not used for purposes of the armed forces at a particular time. Such certificate, directed to the terms of sub-clauses (1) and (2), might preclude any claim against the Crown or its servant causing death or injury or might enable the injured serviceman or his personal representatives to defeat any attempt by the person causing the death or injury to claim the exemption provided under sub-clauses (1) and (2). The permissive "may" in sub-clause (4), preserved in the section as enacted, makes it clear in my opinion that the minister was not to be bound to issue a certificate, even if satisfied of any fact in (a) or (b).
12. The significant points to be made on the bill are twofold. First, in the case of exempted claims the injured serviceman or his personal representatives would have no right at all to recover damages, either against the Crown or against the serviceman causing the injury or death. Secondly, clause 10 as initially drafted contained no provision equivalent to section 10(1)(b) of the Act as passed (although there was, in clause 10(4), a provision equivalent to what became section 10(3)). Section 10(1)(b) was added by amendment during the passage of the bill through the House of Commons without opposition.
13. This is a matter of some importance, since Mr Richard Gordon QC, ably arguing Mr Matthews' appeal, accepted that had the 1947 Act preserved the common law prohibition of claims in tort against the Crown, or had it been enacted so as to have the effect of the original version of clause 10, Mr Matthews would have had no right in domestic law to recover damages against the Crown in tort and hence, for purposes of the Convention, would have had no "civil right" the determination of which article 6 could operate to protect. Mr Gordon's argument depended on the contention that Mr Matthews had a cause of action against the Crown in tort from the moment he suffered significant injury until the Secretary of State gave his certificate under section 10(1)(b). Thus, it was said, Mr Matthews had a substantive right which the Secretary of State's certificate operated to prevent him pursuing, thus acting as a procedural bar which was incompatible with article 6. Only the section 10(1)(b) certification procedure, introduced by amendment in the House of Commons, opened the door to this argument.
14. The question therefore arises whether the effect of sections 2 and 10 of the 1947 Act, read together, was (as Mr Gordon contended) to give a claimant such as Mr Matthews, on facts such as are assumed here, a right to recover damages in tort against the Crown only defeasible if and when the Secretary of State gave his certificate under section 10(1)(b). Differently expressed, the question is what did Parliament intend, a question to be answered by interpreting, in its context, the 1947 Act.
15. I consider it to be clear that Parliament did not intend to confer any substantive right to claim damages against the Crown for the exempted claims. My reasons for reaching that conclusion, cumulatively, are these:
(1) Historically, no such right existed. It was clear that such claims were absolutely barred.
(2) When detailed proposals for reform were put forward in 1927, no cause of action was proposed in relation to the exempted claims. They were to remain absolutely barred.
(3) When the Crown Proceedings Bill was introduced in the House of Lords in 1947 it was again provided that the exempted claims should be absolutely barred. Those with claims falling within that category were to be compensated, if they fulfilled the qualifying conditions, by the award of a pension, which was then believed to approximate in value to an award of common law damages, but by a procedure which relieved the victim of the need to prove negligence or breach of statutory duty and which could be available in circumstances where a claim at common law would not lie. See the later case of Bell v Secretary of State for Defence  QB 322 at 329.
(4) There is nothing to suggest that when section 10(1), as it was to become, was uncontentiously amended in the House of Commons, there was any intention to alter the essential thrust of the provision as previously drafted. The inference is, I think, clear that the object of the new certification procedure was to ease the path of those denied any right to a common law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the grant of a pension. It must be remembered that although section 28 of the 1947 Act provided for discovery by the Crown, the practice at the time was to claim Crown privilege for a very wide range of service documents in accordance with the expansive principle laid down by the House of Lords in Duncan v Cammell Laird & Co Ltd  AC 624. Thus it was a benefit to the serviceman if the Secretary of State estopped himself from contesting the issue of attributability.
(5) Whereas the issue of a certificate under what became section 10(3) was discretionary, as shown by the permissive "may", no such permissive language was applied to the issue of a certificate under section 10(1)(b). It was plainly intended that, where the conditions were met, the Secretary of State should issue a certificate, as was the invariable practice of successive Secretaries of State over the next 40 years.
(6) Although different judges have used different language, the English courts have consistently regarded section 10(1) as precluding any claim at common law. Thus one finds references such as these:
(7) It was the absolute nature of the exclusion imposed by section 10(1) on exempted claims (coupled with the discrepancy, by 1987, between the value of a pension and the value of a claim for common law damages) which fuelled the demand for revocation of section 10 that found expression in the Crown Proceedings (Armed Forces) Act 1987. But it was never, to my knowledge, suggested that the exclusion of exempted claims imposed by section 10 was anything other than absolute, whether the claim arose from events with or without an analogy in civilian life, and the revocation of section 10 was only to take effect prospectively.
(8) In deciding whether section 10(1) imposes a procedural bar or denies any substantive right, regard must be paid to the practical realities and not to technicalities: Van Droogenbroeck v Belgium (1982) 4 EHRR 443 at 456, para 38, followed in R (Anderson) v Secretary of State for the Home Department  3 WLR 1800, 1807,  UKHL 46, para 13. It is what happens in practice which matters. The practice, as already mentioned, has been uniform and unvarying. Any practitioner asked to advise Mr Matthews on the assumed facts would have advised him, however reluctantly, that a certificate under section 10(1)(b) was bound to be issued, that he could apply for the grant of a pension if his disablement was of sufficient severity to qualify, but that he had no claim which had any prospect of success at common law.
16. Mr Gordon relied on various Strasbourg decisions to support his contention that this was not a case in which domestic law denied any substantive right but one in which the certification provision in section 10(1)(b) operated as a procedural bar. Three of these call for comment. The first of these was Pinder v United Kingdom (1984) 7 EHRR 464, which concerned section 10. The Commission posed the question (page 465, paragraph 3) "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 section 10 of the 1947 Act". "Removed" must here be read in a special sense, since the right had never existed and when the blanket historical bar was abrogated by section 2 of the 1947 Act it did so subject to the provisions of the Act which expressly excluded the exempted claims in section 10. The Commission went on (page 465, paragraph 5) to acknowledge that "Whether a right is at all at issue in a particular case depends primarily on the legal system of the State concerned". The Commission then referred to authority (pages 465-466, paragraphs 6-7) establishing that article 6(1) should not be interpreted as enabling member states 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. I fully recognise and respect this authority: where a right in domestic law exists, any measure restricting its effective exercise must be justified. But it is first necessary to decide, consistently with the Strasbourg jurisprudence, whether such a right does exist in domestic law. Here there was no such right and I question whether the Commission was right to ask "whether section 10 of the 1947 Act constitutes an arbitrary limitation of the applicant's substantive civil claims" (page 466, paragraph 7) when in truth the applicant had no substantive civil claim.
17. The second case particularly relied on was Fayed v United Kingdom (1994) 18 EHRR 393, in which the applicant sought to challenge the English rules on privilege in the law of defamation. The European Court cited Dyer v United Kingdom (1984) 39 D & R 246, a Commission decision to the same effect as Pinder (page 429, paragraph 65, footnote 2), but found it unnecessary to decide whether article 6(1) applied since issues of legitimate aim and proportionality in any event arose and would fall to be considered under article 8 (pages 430-431, paragraphs 67-68). In this case, however, the applicant had a right long-established and well-recognised in domestic law to vindicate his reputation. It is easier in such a case, as compared with the present, to understand how an impediment to the effective exercise of that right could be viewed as procedural.
18. The most recent case, and that on which Mr Gordon most strongly relied as indistinguishable from the present, was Fogarty v United Kingdom (2001) 34 EHRR 302. In that case the immunity against employment claims conferred on foreign states by section 16(1) of the State Immunity Act 1978 was held to be seen (page 311, paragraph 26) "not as qualifying a substantive right but as a procedural bar, preventing the applicant from bringing her claim before the Industrial Tribunal". This ruling must be understood in the context that the applicant had an express statutory right to compensation for victimisation and discrimination under the Sex Discrimination Act 1975, a right very closely allied to that which she had already successfully exercised against the same employer. Far from being indistinguishable from the present, this case is in my opinion categorically different.
19. Mr Gordon was able to point to certain Strasbourg authorities in which there was recognition, in addition to cases where domestic law conferred no legal right whatever and cases in which domestic law conferred a right but imposed a procedural bar on its exercise, of a third class of case in which there was some legal basis for a right in domestic law which was subject to substantive immunity from liability. Such references are to be found in the opinions of the Commission in Dyer v United Kingdom (1984) 39 D & R 246 at 252, paragraph 6), Pinder v United Kingdom (1984) 7 EHRR 464 at 466, paragraph 7 and Osman v United Kingdom (1998) 29 EHRR 245 at 287-288, paragraph 119. It is in my opinion unnecessary to explore this authority, since immunity strictly speaking assumes the existence of a right in national law which but for the immunity could be asserted and here, as I have endeavoured to show, the right which Mr Matthews seeks to assert has never, at any time relevant to his claim, existed in national law. The decisive nature of this conclusion was recognised by the European Court in Z v United Kingdom (2001) 34 EHRR 97 at 138, paragraph 100, where the Court said:
The point was further elaborated by Lady Justice Arden in her concurring opinion (pp 150-151, paragraph 0-13):
The Court had considerations of this sort in mind when, in the early case of Golder v United Kingdom (1975) 1 EHRR 524 at 536, paragraph 35, it spoke of taking away the jurisdiction of the courts.