England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(HH Judge Harris QC)

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 27th June 2001

LORD JUSTICE BROOKE:

1. This is an appeal by the claimant Michael Cachia against an order of Judge Harris QC, sitting as a judge of the High Court, dated 31st October 2000 whereby he directed that his claim in this action be struck out. The judge said that the application by the defendant to have the claim struck out raised an unusual point, on which there was no previous authority. He granted permission to appeal, commenting that the point at issue was a matter of some importance. Although in the events that have occurred in this court the defendant eventually conceded that the appeal should be allowed, the issue is of some general importance. I am therefore delivering this judgment to explain why we are taking the course of allowing this appeal.
2. Put shortly, the issue was this. Section 2(3) of the Fatal Accidents Act 1976 provides that:

"Not more than one action shall lie for and in respect of the same subject-matter of complaint."

Did this mean that if a writ was issued in a Fatal Accidents Act claim brought on behalf of a deceased's dependants but never served, this automatically precluded the bringing of a new action some years later?

3. The facts of the case are simple. On 6th October 1988 Mrs Cachia was riding her bicycle in a road in South-East London when she was hit by a car driven by the defendant. She died 12 days later. Liability for the accident has never been admitted. The defendant claims that she caused the accident by veering in front of him. She left a husband and four children, who were aged 13, 11, 8 and 4 at the date of her death.
4. On 16th October 1991, just before the three-year limitation period expired, a firm of solicitors issued a writ in her husband's name claiming damages both on behalf of the estate and on behalf of her dependants under the Fatal Accidents Act. This writ was never served. There was evidence before the judge that this firm of solicitors represented the claimant up to the end of 1992, and after their last letter to the defendant's representatives on 10th December 1992 Mr Cachia had some direct contact with them himself, although this contact came to nothing.
5. On 18th April 1997 a new firm of solicitors appeared on the scene on behalf of the claimant. On 10th June 1997 they issued a new writ, which was served ten days later. By this time the Cachias' eldest daughter had reached the age of 21: the claims of the other three children were not statute-barred by any primary limitation period. The Statement of Claim was served on 2nd July 1997, and the Defence on 11th July 1997. On 1st August 1997 the defendant's solicitors issued a summons, presumably in support of the pleas of limitation in paragraphs 1-3 of the Defence, which did not at that time include any reliance on Section 2(3). The claimant's solicitors, however, asked them to take no action on this summons pending the resolution of a claim they were pursuing against their client's former solicitors. It appears that liability was eventually conceded in relation to the claims made on behalf of the estate and the Fatal Accidents Act claims brought on behalf of the claimant and the couple's eldest daughter, but not in respect of the dependency claims of the three younger children.
6. On 17th May 2000 the claimant's solicitors issued an application for a declaration to the effect that the three younger children had the right to pursue their claim against the defendant despite the issue of the earlier writ. The defendant's solicitors riposted four months later with an application for an order that the claim be struck out, alternatively for such order limiting the defendant's exposure on liability and quantum as might be just. When Judge Harris heard the matter in October 2000, he was concerned only with the question whether proceedings on the 1997 writ were barred pursuant to the effect of section 2(3) of the Fatal Accidents Act 1976. He said he did not propose to go on to consider the alternative application to strike out for want of prosecution or delay, although it seemed to him not unlikely that there must be some strength in the defendant's argument that it would not be possible at this length of time to have a fair trial.
7. I have set out the wording of section 2(3) in paragraph 2 of this judgment. The language of this provision has remained the same since it was first enacted as Section III of the Fatal Accidents Act 1846, except that at that time the section read:

"Provided always, and be it enacted, That not more than One Action shall lie for and in respect of the same Subject Matter of Complaint, and that every such Action shall be commenced within Twelve Calendar Months after the Death of such deceased Person." (emphasis added).

8. By the time the fatal accidents legislation was consolidated in 1976, the limitation provision had been siphoned off into other legislation. Most recently, the Limitation Act 1975 had introduced a revised code making new provision for personal injuries litigation. This code adopted the phraseology "an action … shall not be brought" when indicating that a primary limitation period had fully run.
9. On this appeal, before the introduction of an ECHR point, the defendant adopted the argument which found favour with the judge. The judge held that although it was certainly one of the aims of those who framed the 1846 legislation to ensure that all the dependants joined in a single action, the language of the Act was clear. An action had been brought on behalf of these dependants in 1991 and was allowed to die. It was not permissible in these circumstances to bring another action now. In this context he accepted the concession by counsel for the claimant to the effect that the words "shall lie" were the equivalent in modern language of the words "shall be brought" (see, for example, Avery v London and North East Railway Company [1938] AC 603, per Lord Atkin at p 613: "One action alone can be brought, and the persons who stand out stand out for ever"). He also referred to a dictum of Lord Simon of Glaisdale in Re Herbert Berry [1977] 1 WLR 1437, 1446 to the effect that:

"The primary sense of action as a term of legal act is the invocation of the jurisdiction of the court by writ."

10. Mr Lawrence originally submitted that it was unlikely that Parliament intended that dependants should be without a remedy in circumstances such as have arisen in this case. He suggested three possible routes by which justice might be done.
11. The first involved interpreting the word "action" as meaning "served process" in this context. He said that the fact that the word "action" in other contexts might refer to unserved proceedings was nothing to the point: this statute must be construed by reference to its purpose.
12. In my judgment, this route was not open to us. Although the House of Lords has said that if the words of a consolidating statute are clear, one should not go backwards into the legislative history of the words used in it (Farrell v Alexander [1977] AC 59), an action naturally begins when initiating process is issued and a court thereby acquires jurisdiction to make orders against the defendant, notwithstanding that he has not yet been served with process. If there was any lack of clarity there, recourse to the 1846 Act would show that it was inconceivable that Parliament intended the word "action" to have two different meanings in a single short section.
13. Mr Lawrence's second route involved withdrawing the concession made in the court below about the meaning of the words "not more than one action shall lie". He now sought to argue, notwithstanding Lord Atkin's dictum, that they should mean that there was only one cause of action, which would merge in any judgment given in any action, and which would be disposed of by any settlement. He conceded that this construction did not wholly deal with all the practical problems that might arise, since it was possible (see Cooper v Williams [1963] 2 QB 567) for one dependant to be prejudiced by the settlement of (or entry of judgment in) an action brought by another. He suggested, however, that this interpretation did provide a defendant with appropriate protection, in that if a defendant settles a claim, or if a claim goes to judgment, that defendant cannot be troubled by any further proceedings.
14. In my judgment, this route was equally illegitimate. If Parliament had wanted to give legislative effect to this concept it would have been easy for it to have found the appropriate language to give effect to its wish. The fact of the matter is that this provision had remained on the statute book for 130 years prior to 1976 without giving rise to any particular difficulty, and it may be that it was only the advent of extended limitation periods for minors, unaccompanied by any similar extension of the period of validity of an unserved writ, that gave rise to the problem that has surfaced in the present case. We must not turn ourselves into legislators if the language used by Parliament simply does not permit it.
15. Mr Lawrence's third route was slightly more promising. He suggested that we might be willing to interpret the words of the sub-section as meaning that no action should be maintained. If it simply withered away because a protective writ was not served and the defendant had never been troubled with it, it would be a misuse of language to say it had ever been maintained (or had ever "lain" in any real sense of the word). I might have been tempted down that imaginative route of statutory construction to right an obvious injustice to these children if a more orthodox route was not now provided by the Human Rights Act 1998.
16. Mr Lawrence raised a human rights point for the first time on the Friday before we were due to hear the appeal the following Monday. When we first heard the appeal we gave him permission to amend the notice of appeal to take the point, since the court would in any event have been obliged to consider it pursuant to our duty under section 6(1) of the Act. He opened the appeal on this extended basis, and we heard Mr Treasure's reply on the non-ECHR points. We then adjourned the hearing for two days to enable Mr Treasure to prepare his response on the ECHR point. In the event, he conceded that it was a good one, and that the appeal should be allowed on this basis.
17. The point arises in this way. The ECHR gives these three children a right of access to a court to claim compensation for their loss of dependency following the death of their mother. Although the European Court of Human Rights ("ECtHR") recognises that the enactment of limitation periods represents the pursuit of a legitimate aim (see Stubbings v United Kingdom 23 EHRR 213 paras 53-55), these claims were not statute-barred when this writ was issued in 1997.
18. The ECtHR has also recognised the legitimacy of other restrictions on the right of access to a court that have been drawn to its attention from time to time. Cases involving vexatious litigants, persons under disability, and the striking out of actions for want of prosecution are obvious examples. A fuller list can be found in standard text-books on Article 6(1): see, for example, Clayton and Tomlinson, The Law of Human Rights, Vol 1, pp 640-1, para 11.191. The governing test, set out in the judgment of the ECtHR in Ashingdane v United Kingdom 7 EHRR 528 para 57, and repeated often in later cases, is that such restrictions must not impair the essence of the right of access; they must have a legitimate aim, and the means used must be reasonably proportionate to the aim sought to be achieved.
19. In my judgment, Mr Treasure was right not to seek to argue that the fortuitous effect of section 2(3) of the Fatal Accidents Act in a case where a writ has never been served and a new writ has been issued within the primary limitation period could have any legitimate aim. It was just a procedural quirk, brought about by the chance that Parliament had never considered this particular problem, and because our traditional English methods of interpreting statutes could not right an obvious injustice. He was also right to place no reliance on the words "within a reasonable time" in Article 6(1) when Parliament permitted children an extended period in which to exercise their right of access to a court. Mr Treasure was also wise to accept, on reflection, that the right to rely on a procedural quirk as a bar to these children's right of access to a court could not possibly amount to a "possession" within the meaning of Article 1 of the First Protocol of the Convention.
20. Since 2nd October 2000 we have been under a duty not to act in a way which is incompatible with a Convention right (1998 Act, section 6(1)), and so far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights (section 3(1)). It is certainly possible to interpret the word "action" as meaning "served process" in order to give effect to the Convention rights of these three children. Until the present writ was served in July 1997, no process had been served which asserted a claim to compensation by these children for their mother's death. Section 2(3) of the Fatal Accidents Act 1976 therefore presents no artificial bar to this claim.
21. This is a very good example of the way in which the enactment of the Human Rights Act now enables English judges to do justice in a way which was not previously open to us.
22. The appeal must therefore be allowed, and the matter remitted to the High Court so that a judge can consider the other issues arising on the defendant's application.

LORD JUSTICE HENRY:

23. I agree.

MASTER OF THE ROLLS:

24. I also agree.
ORDER:
25. Appeal allowed.
26. No order as to costs in court below
27. Respondents to pay appellant's costs of the appeal.
(Order does not form part of approved Judgment)