Matthews v Ministry of Defence

A statutory immunity which defines the absence of civil liability is a rule of substantive law. It does not engage Article 6 merely because a claimant cannot pursue a negligence action. A procedural rule, by contrast, regulates the judicial determination of an existing civil right and remains subject to Article 6.

Section 10 of the Crown Proceedings Act 1947 substituted potential service-pension rights for a serviceman’s negligence claim where its conditions were met. The Secretary of State’s certificate was the procedural means of asserting that latent substantive defence, not a discretionary procedural bar. A claim always subject to that statutory defence was not a possession for Article 1 of the First Protocol. Section 3 of the Human Rights Act 1998 could not justify rewriting the provision to confine it to warlike conditions.

The claimant was a former naval electrical mechanic. He alleged that asbestos exposure during service between 1955 and 1968 had caused pleural plaques and diffuse pleural fibrosis. He sued the Ministry of Defence in negligence and for breach of statutory duty.

The Ministry relied on section 10 of the Crown Proceedings Act 1947. After the first-instance decision, the Secretary of State certified that the claimant’s injury would be treated as attributable to service for pension purposes. Keith J had held that section 10 could not be read down, but that it was incompatible with Article 6. The Ministry appealed from [2002] EWHC 13 (QB).

The central issues were whether section 10 was a substantive immunity or a procedural bar, whether it engaged Article 6 or Article 1 of the First Protocol, and whether section 3 of the Human Rights Act 1998 permitted a warlike-conditions limitation to be implied.

1. Appeal allowed; action dismissed. The court held that section 10 of the Crown Proceedings Act 1947 was compatible with the Convention on the facts pleaded.

2. Article 6 distinguishes rules governing access to the adjudication of an existing civil right from substantive rules defining civil rights and liabilities. A statutory immunity from liability may leave a claimant without a remedy, but Article 6 does not prescribe the substantive content of domestic civil law. The court considered that the contrary suggestion in the earlier Commission decisions was unsound insofar as it concerned substantive immunity.

3. Section 10 was substantive. Where its conditions were satisfied, the serviceman had no effective negligence cause of action against the Crown. The pension scheme was not a remedy for a breach of duty because entitlement did not depend on fault. The certificate under section 10(1)(b) or 10(2)(b) was required to assert a defence already supplied by substantive law; it was not an executive choice to impose a procedural bar. Questions whether the factual conditions in section 10(1)(a) or 10(2)(a) were met remained justiciable.

4. Accordingly, the claimant had no civil right engaging Article 6 once the statutory conditions and certificate applied. The court also concluded that the negligence claim was always defeasible under section 10. The certificate therefore did not deprive him of a possession for Article 1 of the First Protocol.

5. Section 3 of the Human Rights Act 1998 was not engaged because no Convention right was interfered with. In any event, implying a requirement of warlike conditions would fundamentally alter the scope of section 10 and would amount to impermissible judicial legislation. No proportionality issue consequently arose. The court nevertheless observed that the continuing effect of section 10 upon persons discovering pre-1987 injuries appeared harsh.

• Court of Appeal (Civil Division): Allowed the Ministry’s appeal and dismissed the action.
• Queen’s Bench Division: Keith J held that section 10 could not be read down, but made a declaration of incompatibility: [2002] EWHC 13 (QB).