Matthews v Ministry of Defence

The House of Lords held that, for the purposes of Article 6(1) of the European Convention on Human Rights, the relevant question is whether domestic law recognises on arguable grounds a civil right. Sections 2 and 10 of the Crown Proceedings Act 1947 must be read together and Parliament did not intend section 10 to leave servicemen with a substantive cause of action in tort which is then defeated by a discretionary executive certificate. Rather, section 10 forms a substantive limitation on the right to sue the Crown in tort: the certificate operates to link the exclusion from tortious liability to entitlement under the war pensions scheme and to prevent inconsistent positions by the Crown, and is therefore part of the substantive scheme of liability. Accordingly Article 6(1) is not engaged by the certification procedure in the circumstances considered.

The claimant, Mr Alan Matthews, alleged personal injury from exposure to asbestos while serving in the Royal Navy between 1955 and 1968 and sought damages in tort against the Ministry of Defence. The Ministry invoked section 10 of the Crown Proceedings Act 1947 and the Secretary of State issued a certificate under section 10(1)(b) stating that the relevant suffering "will be treated as attributable to service" for the purposes of the service pensions scheme; that certificate had the effect of defeating the tort claim. The procedural history ran from the High Court (Keith J) to the Court of Appeal ([2002] EWCA Civ 773) and thence to the House of Lords.

The principal legal issues were (i) whether, for Article 6(1) purposes, Mr Matthews had a civil right in domestic law to claim damages in tort against the Crown; (ii) if so, whether section 10(1)(b) operates as a procedural bar to access to the courts contrary to Article 6(1); and (iii) if there were an Article 6 infringement, whether it could be justified.

The House examined the legislative history of the 1947 Act and the war pensions scheme, relevant Strasbourg jurisprudence and English authority. The Law Lords concluded that Article 6 is concerned with access to a tribunal to determine civil rights that exist (or are at least arguable) under domestic law and does not itself create substantive rights. Section 10 of the 1947 Act formed part of the substantive code governing the Crown's liability in tort: Parliament substituted a no-fault pensions regime for some tortious claims and did not intend to leave claimants with an actionable tort right conditional only on the executive's later forbearance. The certificate was therefore treated as an integral substantive element of the statutory scheme rather than a discretionary procedural fetter on access to the courts. The appeal was dismissed.

Appeal dismissed. The House held that section 10 of the Crown Proceedings Act 1947 creates a substantive limitation on the right to sue the Crown in tort (read with section 2 and the war pensions scheme) and that the Secretary of State's certificate under section 10(1)(b) is part of that substantive scheme rather than a procedural bar engaging Article 6(1).

First instance: High Court (Keith J) — held Article 6(1) engaged; Court of Appeal: [2002] EWCA Civ 773 (Phillips MR, Mummery & Hale LJJ) — allowed Ministry's appeal; House of Lords: [2003] UKHL 4 (final appellate determination).