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Court of Appeal hands down judgment in landmark discrimination claim on unmarried couples

DATE: 29 Nov 2017

The Court of Appeal (the Master of the Rolls, McCombe LJ and Sir Patrick Elias) has delivered judgment in Smith v. Lancashire Teaching Hospitals NHS Trust [2017] EWCA Civ 1916, a challenge to the regime of bereavement damages under section 1A of the Fatal Accidents Act 1976 ("FAA 1976"). It allowed the appeal and made a declaration of incompatibility in respect of section 1A of the FAA 1976 under section 4 of the Human Rights Act 1998. The Appellant was the surviving opposite-sex cohabiting, unmarried partner of a man who died following the admitted negligence of the first two defendants. Because the Appellant was not married to him and could not enter a civil partnership with him, she was not eligible for bereavement damages under the FAA 1976. She claimed this was a breach of her rights under Article 14, read with Article 8, of the European Convention on Human Rights. The Secretary of State for Justice was joined as a third defendant to defend this part of the claim, the remaining parts having been settled by the first two defendants. The claim failed at first instance before Eadis J on the basis that section 1A of the FAA 1976 was not within the ambit of Article 8 for the purposes of Article 14: [2017] PIQR P4. The Court of Appeal allowed the Appellant’s appeal against that finding, and dismissed the Secretary of State’s cross-appeal on the issue of analogous position.

The judgment can be found here. Press coverage of the case can be found here and here.

David Blundell represented the third defendant, the Secretary of State for Justice.