Swift v Secretary of State for Justice: CA 18 Mar 2013

The claimant appealed against refusal of a declaration that the 1976 Act infringed her human rights. She had been cohabiting for six months, when her partner was killed in an accident at work for which a third party was liable. Because she had not been cohabiting for two years, her claim for loss of dependency was rejected.
Held: The cut off period was supported by an argument that it avoided disputes, but itdid not. The burden of proof was the same. However a wide margin of appreciation was due to Parliament in making such judgements, and: ‘was entitled to decide that there had to be some way of proving the requisite degree of permanence and constancy in the relationship beyond the mere fact of living together as husband and wife. It was entitled to take the view that there cannot be a presumption in the case of short-term cohabitants, unlike that of married couples (section 1(3)(a)) or parents and their children (section 1(3)(e)) that the relationship is or is likely to be one of permanence and constancy. ‘ The rule was a proportionate means of pursuing a legitimate aim.
Lord Dyson said: ‘the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim referred to at para 23 above. Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more.’
Lord Dyson MR, Lewison, Treacy LJJ
[2013] EWCA Civ 193, [2013] HRLR 21, [2013] PIQR P14, [2013] 2 FCR 1, [2013] 3 WLR 1151, [2013] WLR(D) 118, [2014] 1 QB 373
Bailii, WLRD
Fatal Accidents Act 1976 1(3)(b), European Convention on Human Rights 8
England and Wales
Cited by:
CitedSmith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
CitedCoventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
CitedBrewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.471876