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- Lord Bingham of Cornhill
- Lord Walker
- LORD HOPE OF CRAIGHEAD
- Lord Hope of Craighead
- LORD HOFFMANN
- Lord Millett
- LORD BINGHAM OF CORNHILL
- LORD MILLETT
- Lord Hoffmann
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Matthews v. Ministry of Defence
Smart Summary
Factual and Procedural Background
The Appellant, a former member of the armed forces, alleged that between 1955 and 1968 he was exposed to asbestos while serving aboard naval vessels, subsequently developing pleural plaques and related conditions. In March 2001 he issued a High Court claim in negligence against the Respondent, the Ministry of Defence. Relying on section 10(1)(b) of the Crown Proceedings Act 1947, the Secretary of State issued a certificate in March 2002 confirming that the Appellant’s exposure would be treated as “attributable to service” for war-pension purposes. The certificate had the statutory effect of preventing any tort claim.
Before Judge Keith the Appellant contended that section 10 breached his right of access to court under article 6(1) of the European Convention on Human Rights (“ECHR”). Judge Keith agreed, but the Court of Appeal reversed that decision, treating section 10 as a rule of substantive law falling outside article 6. The Appellant obtained permission to appeal to the House of Lords solely on that Convention question.
Legal Issues Presented
- Whether, for article 6 ECHR purposes, the Appellant possessed a “civil right” to claim damages in tort against the Crown.
- If so, whether section 10(1) of the Crown Proceedings Act 1947 constitutes an impermissible procedural bar to the determination of that civil right by an independent and impartial tribunal.
- If section 10(1) imposes such a bar, whether that restriction is justified under the proportionality test developed in Convention jurisprudence.
Arguments of the Parties
Appellant's Arguments
- Until the Secretary of State issued a certificate, section 2 of the 1947 Act conferred a full substantive right to sue; the certificate merely extinguished that right procedurally.
- According to Fogarty v United Kingdom, a discretionary executive certificate is a procedural bar requiring justification under article 6.
- The 1987 repeal of section 10 shows Parliament itself now considers the immunity disproportionate; enforcing it in 2003 therefore cannot meet a legitimate aim.
Respondent's Arguments
- Section 10 defines the very existence, not merely the enforcement, of any tort liability: historically the Crown was never answerable for “exempted claims.”
- The certificate functions only to prevent inconsistent positions on pension entitlement; it does not transform an otherwise valid cause of action into a barred one.
- Strasbourg decisions such as Z v United Kingdom confirm that article 6 is not engaged where domestic law recognises no arguable civil right.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
| König v Germany (1978) 2 EHRR 170 | “Civil rights” is an autonomous Convention concept. | Used as starting point for analysing whether the Appellant’s tort claim is a Convention civil right. |
| Z v United Kingdom (2001) 34 EHRR 97 | Article 6 applies only to rights arguable in domestic law. | Lords relied on it to hold the Appellant never had a domestic tort right, so article 6 was not engaged. |
| Powell and Rayner v United Kingdom (1990) 12 EHRR 355 | Distinction between provisions eliminating liability and those imposing procedural bars. | Cited as example of substantive exclusion of liability. |
| Stubbings v United Kingdom (1996) 23 EHRR 213 | Procedural restrictions must not impair the essence of the right. | Referenced when discussing proportionality if article 6 had applied. |
| Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249 | Secretary of State’s certificate regarded as procedural bar. | Distinguished: certificate in present case merely confirms pension entitlement, not national-security exclusion. |
| Fogarty v United Kingdom (2001) 34 EHRR 302 | State immunity as procedural bar capable of justification. | Appellant’s principal authority; House found it categorically different. |
| Fayed v United Kingdom (1994) 18 EHRR 393 | Difficult line between substance and procedure. | Quotation adopted to show the conceptual difficulty but ultimately not decisive. |
| Golder v United Kingdom (1975) 1 EHRR 524 | Right of access to court is inherent in article 6. | Provided overarching framework; Lords held access right never arose absent any civil right. |
| Feather v R (1865) 6 B & S 257 | Historic common-law immunity of the Crown. | Illustrated pre-1947 absolute bar against suing the Crown. |
| Adams v Naylor [1946] AC 543 | House disapproved practice of suing nominal defendants. | Shown as factor prompting 1947 legislative reform. |
| Mulcahy v Ministry of Defence [1996] QB 732 | No negligence duty in battlefield conditions. | Cited to indicate limits of liability even after 1947 Act. |
| Bell v Secretary of State for Defence [1986] QB 322 | Effect of section 10 certificates on pension claims. | Used to explain certificate’s purpose. |
| Van Droogenbroeck v Belgium (1982) 4 EHRR 443 | Convention looks to practical realities. | Supported Court’s focus on how section 10 operates in practice. |
| R (Anderson) v Secretary of State [2002] UKHL 46 | Domestic endorsement of “practical realities” approach. | Cited alongside Van Droogenbroeck. |
| Pinder v United Kingdom (1984) 7 EHRR 464 | Commission treated section 10 as acceptable no-fault substitution. | Relied on as earlier Strasbourg approval of the statutory scheme. |
| Osman v United Kingdom (1998) 29 EHRR 245 | Earlier expansive view of procedural bars. | Noted and rejected in light of later clarification in Z. |
| Ashingdane v United Kingdom (1985) 7 EHRR 528 | Legitimate procedural restrictions accepted if proportionate. | Background precedent in proportionality discussion. |
| Duncan v Cammell Laird & Co Ltd [1942] AC 624 | Historic breadth of Crown privilege over documents. | Explained need for certificate mechanism. |
| James v United Kingdom (1986) 8 EHRR 123 | Article 6 does not dictate content of civil rights. | Used to underline domestic-law focus. |
| Waite & Kennedy v Germany (1999) 30 EHRR 261 | Immunity as procedural bar requiring alternative remedies. | Mentioned in broader discussion of immunities. |
Court's Reasoning and Analysis
The House of Lords, led by Judge Bingham, undertook a historical and textual analysis of the Crown Proceedings Act 1947. Eight cumulative reasons were given for treating section 10 as a substantive limitation:
- Under common law the Crown’s liability in tort for “exempted claims” never existed.
- Successive reform proposals in 1927 and the original 1947 Bill deliberately preserved that position for armed-forces injuries.
- The statutory war-pension scheme was intended as the exclusive compensation mechanism, eliminating any parallel tort entitlement.
- The certificate procedure was introduced only to streamline pension entitlement and avoid proof disputes; it was never designed to create, then remove, a tort right.
- Unlike discretionary certificates under section 10(3), a section 10(1)(b) certificate is obligatory once conditions are met, making denial of court access inevitable in practice.
- Domestic courts have consistently treated section 10 as an absolute bar to tort claims.
- Parliament’s later prospective repeal in 1987 confirms, rather than contradicts, the section’s original substantive character.
- The Convention jurisprudence—especially Z v United Kingdom—emphasises that article 6 is not triggered where domestic law recognises no arguable civil right.
Distinguishing Fogarty, the Lords observed that state immunity involves a foreign sovereign’s voluntary waiver, whereas section 10 operates automatically once statutory criteria are satisfied. Accordingly, the certificate did not strip the Appellant of an existing enforceable right; it merely confirmed that such a right never arose.
Holding and Implications
Appeal dismissed.
The House held that the Appellant never possessed a “civil right” to sue the Crown for the injuries alleged; section 10 defines substantive liability, not procedure. Consequently article 6 ECHR was not engaged and no proportionality analysis was required. The decision leaves intact the non-retrospective repeal effected by the Crown Proceedings (Armed Forces) Act 1987: service-related injuries arising before 15 May 1987 remain compensable only under the armed-forces pension scheme, not in tort. No new precedent was created; the ruling re-affirms long-standing interpretations of both domestic statute and Strasbourg case law.
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