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