Factual and Procedural Background
This is an appeal from a judgment given by Judge Keith J on 22 January 2002 concerning the compatibility of section 10 of the Crown Proceedings Act 1947 (the 1947 Act) with the European Convention on Human Rights. The case involves a serviceman, the Plaintiff, who served in the Royal Navy between 1955 and 1968 and alleges that exposure to asbestos during his service caused him asbestos-related injuries. The Plaintiff claims negligence and breach of statutory duty against the Ministry of Defence, which intends to defend the claim but asserts immunity under section 10 of the 1947 Act. The Plaintiff contends that section 10 should be interpreted compatibly with the Convention or alternatively that it is incompatible. The judgment below rejected the interpretation argument but found incompatibility with the Convention.
Legal Issues Presented
- Whether section 10 of the Crown Proceedings Act 1947 is compatible with the European Convention on Human Rights, particularly Articles 2, 6, and Article 1 of Protocol No. 1.
- Whether section 10 should be interpreted in a manner compatible with the Convention under section 3 of the Human Rights Act 1998.
- Whether the immunity conferred by section 10 is procedural or substantive in nature, and the implications for access to justice under Article 6.
- The applicability of the "State service exclusion" under Article 6 to claims by members of the armed forces.
- Whether the issuance of a certificate by the Secretary of State under section 10 constitutes a deprivation of a vested right or possession under Article 1 of Protocol No. 1.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff argued that section 10 can and should be interpreted compatibly with the Convention to allow his claim to proceed.
- Alternatively, if such an interpretation is not possible, section 10 is incompatible with the Convention.
- Under Article 2, the State owes a positive duty to protect life, and the immunity removes an adequate remedy for a breach of that duty.
- Under Article 6, the Plaintiff asserts a civil right to compensation for injury, and section 10 denies him a fair hearing, thus infringing Article 6.
- Section 10 is procedural in nature, and thus the issuance of a certificate is a procedural bar rather than a substantive removal of rights.
- Section 10 should be given a purposive interpretation to limit its application to warlike conditions, consistent with Parliamentary intention and proportionality.
- Section 10 infringes Article 1 of Protocol No. 1 by depriving the Plaintiff of a vested cause of action without sufficient justification.
Respondent's Arguments
- The Ministry of Defence contended that section 10 confers substantive immunity from liability for personal injury claims by servicemen in respect of service-related injuries before 1987.
- Article 6 does not apply to claims by servicemen under the "State service exclusion" because such claims do not constitute civil rights within the meaning of Article 6.
- The Plaintiff does not have a civil right to a court hearing under Article 6 because section 10 removes the cause of action substantively, not procedurally.
- The Human Rights Act 1998 does not permit reading down section 10 to restrict its ambit as proposed by the Plaintiff; such a reinterpretation would amount to legislating.
- The issuance of the certificate by the Secretary of State removes the Plaintiff’s cause of action in negligence and substitutes a pension entitlement, which is a substantive change in rights.
- There is no incompatibility between section 10 and the Convention rights invoked, and no retrospective effect arises in this case.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Mulcahy v Minister of Defence [1996] QB 732 |
Summary of Crown immunity before 1947 and duty of care between servicemen during warfare. |
Provided historical context on Crown immunity and tort liability among servicemen. |
| Pellegrin v France (2001) 31 EHRR |
Functional test for applicability of Article 6 to public servants based on nature of duties and responsibilities. |
Confirmed that Article 6 excludes disputes relating to conditions of service of public servants, including armed forces. |
| R v Belgium (27 February 2001) (App. No. 33919/96) |
Application of Pellegrin test to reservist soldier’s claim regarding pension delay. |
Supported the exclusion of Article 6 for claims related to armed forces service conditions. |
| Fogarty v United Kingdom (2002) 34 EHRR 12 |
Procedural bar versus substantive right distinction under Article 6. |
Held that immunity asserted was procedural, barring access to court but not removing substantive rights. |
| Osman v United Kingdom (1999) 29 EHRR 245 |
Judicial process and Article 6 rights concerning existence of civil rights. |
Referenced in discussion of procedural bars and substantive rights. |
| Z v United Kingdom (2001) 34 EHRR 3 |
Recognition that preliminary issues on civil rights existence do not infringe Article 6. |
Supported the distinction between procedural and substantive law in Article 6 context. |
| James v United Kingdom (Leasehold Reform Act 1967) |
Article 6 does not guarantee substantive content of civil rights, only access to courts. |
Supported that substantive statutory rules limiting rights do not engage Article 6. |
| Stubbings & Others v United Kingdom (1996) 23 EHRR 213 |
Limitation rules as procedural and subject to Article 6. |
Used in analysis of procedural vs substantive limitations. |
| Fayed v United Kingdom |
Limits on court access via substantive defences and immunities under Article 6. |
Emphasised rule of law principle against arbitrary immunities from civil liability. |
| Waite and Kennedy v Germany (1999) 30 EHRR |
Immunity from suit as procedural bar engaging Article 6. |
Distinguished procedural immunity from substantive immunity. |
| Powell and Rayner v United Kingdom (1990) 12 EHRR 355 |
Substantive immunity from liability does not engage Article 6 if no civil right exists. |
Supported conclusion that substantive immunity provisions do not violate Article 6. |
| Tinnelly & Sons Ltd v United Kingdom (1999) 27 EHRR 249 |
Conclusive certificates preventing judicial review incompatible with Article 6. |
Distinguished from section 10 certificates; relevant to conclusiveness but not immunity. |
| Pressos Compania Naviera S.A. and Others v Belgium (1995) 21 EHRR 301 |
Vested cause of action in tort constitutes possession under Article 1 of Protocol No. 1. |
Referenced in assessing deprivation of possession by certificate issuance. |
| R v A (No. 2) [2001] 2 WLR 1546 |
Permissibility of reading down statutory provisions under Human Rights Act section 3. |
Considered but rejected as basis to read down section 10 in this case. |
Court's Reasoning and Analysis
The court began by situating section 10 of the 1947 Act within the statutory regime abolishing Crown immunity in tort while making special provision for armed forces members. Section 10 provided immunity from tort liability for injury or death suffered by servicemen on duty, contingent on a certificate issued by the Secretary of State, which was conclusive evidence of entitlement to pension rights in lieu of tort claims.
The court examined whether section 10 infringed Articles 2, 6, and Article 1 of Protocol No. 1 of the Convention. It found no basis for an Article 2 claim, reasoning that any removal of remedy under section 10 would more properly engage Article 13 rather than Article 2.
Regarding Article 6 (right to a fair trial), the court considered the "State service exclusion" from Strasbourg jurisprudence, notably Pellegrin, which excludes disputes related to public servants' conditions of service from Article 6. The court held that this exclusion applies only to disputes relating to conditions of service and does not extend to tort claims by servicemen. It rejected the respondent’s broader submission that all claims by armed forces members fall outside Article 6.
The court then analyzed whether section 10 is procedural or substantive. The appellant argued it is procedural, a bar to court access triggered by the Secretary of State's certificate. The respondent contended it is substantive, removing the cause of action and substituting pension rights. The court agreed with the respondent, concluding that section 10 effects a substantive removal of the cause of action in negligence, not merely a procedural bar. The certificate is a procedural step but the immunity itself is substantive.
The court rejected the appellant’s argument based on the Human Rights Act 1998 section 3 to read down section 10 to apply only to warlike conditions, holding that such a reinterpretation would amount to judicial legislation and was impermissible.
On Article 1 of Protocol No. 1, the court held that the Plaintiff’s right to claim in tort was always subject to section 10 and thus defeasible by the Secretary of State’s certificate. The certificate did not deprive the Plaintiff of a possession in the Convention sense.
Because the court found no engagement of Articles 6 or 1 of Protocol No. 1 by the facts, issues of proportionality and retrospectivity did not arise for determination.
Holding and Implications
The court held that the appeal is allowed and the Plaintiff’s action is dismissed.
The court ruled that section 10 of the Crown Proceedings Act 1947 confers substantive immunity from tort claims by servicemen for injuries sustained in service prior to 1987, upon the issuance of the Secretary of State’s certificate. This immunity does not infringe the European Convention on Human Rights Articles 2, 6, or Article 1 of Protocol No. 1. The court declined to read down section 10 to limit its scope to warlike conditions, as this would exceed judicial interpretative powers.
The decision directly affects the Plaintiff and similarly situated servicemen by precluding tort claims for pre-1987 injuries where a certificate is issued. The court emphasized that no new precedent was established regarding the broader application of the State service exclusion under Article 6 or the scope of section 10 beyond the facts of this case.