Cachia v Faluyi

Section 2(3) of the Fatal Accidents Act 1976 does not prevent dependants bringing a fresh claim where an earlier writ was issued but never served and the fresh proceedings are brought within the applicable limitation period.

Although an action ordinarily begins when originating process is issued, section 3(1) of the Human Rights Act 1998 permits the word “action” to be read as meaning served process where the ordinary construction would create an unjustified interference with the right of access to a court under Article 6(1). Any restriction must pursue a legitimate aim and be reasonably proportionate to it.

Mrs Cachia died after being struck by a car. A writ claiming under the Fatal Accidents Act 1976 was issued in 1991 but was never served. A fresh writ was issued and served in 1997, while the dependency claims of three younger children remained within the extended limitation period.

The High Court, Judge Harris QC, struck out the claim on the basis that section 2(3) permitted only one action for the same subject matter. The central issue on appeal was whether the unserved 1991 writ automatically barred the 1997 proceedings.

1. Appeal allowed. The claim was remitted to the High Court for consideration of the defendant’s remaining applications, including the issues concerning delay and the fairness of a trial.
2. On its ordinary meaning, an action begins when initiating process is issued. The court therefore rejected the argument that “action” ordinarily means only served process. It also rejected the proposed construction that section 2(3) concerned only a single cause of action merging in judgment or settlement.
3. The court could not reformulate the statutory language merely to cure an apparent injustice. However, section 3(1) of the Human Rights Act 1998 required the provision to be read, so far as possible, compatibly with Convention rights.
4. Under Article 6(1), restrictions on access to a court must not impair the essence of the right, must pursue a legitimate aim, and must be reasonably proportionate to that aim. The court applied that approach to the effect of section 2(3).
5. Where the earlier writ had never been served and the fresh writ was issued within the primary limitation period, treating the procedural position as an absolute bar served no legitimate aim. It was a procedural accident or quirk and could not justify denying the children access to a court.
6. The respondent accepted that the appeal should succeed on the Convention point. The court accordingly interpreted “action” in section 2(3), for this purpose, as meaning served process.

There was no order as to costs in the court below. The respondent was ordered to pay the appellant’s costs of the appeal.

• Court of Appeal: Allowed the appeal from the order of Judge Harris QC and remitted the matter to the High Court.
• High Court, Queen’s Bench Division: Judge Harris QC ordered that the claim be struck out on the basis that section 2(3) of the Fatal Accidents Act 1976 barred the fresh proceedings.