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  • Writer's pictureRobert Spicer

Crown immunity and the rule of law (3)

Civil proceedings

Until 1948 the Crown could not be made a party to a civil action. This was an offshoot of the principle of sovereign immunity. The Crown Proceedings Act 1947 changed this rule. The Crown may now be sued in contract or tort, with minor exceptions. A reigning monarch may not be sued.

The application of Crown immunity in relation to civil proceedings in the health and safety field was considered by the Court of Appeal in the case of Matthews v Ministry of Defence (2002). The facts were that M was an electrical engineer in the Royal Navy from 1955 until 1968. He worked on board a number of ships and he claimed that he developed an asbestos-related illness during the course of his work. It was not until 1999 that he became aware that his illness was attributable to his service in the Navy.

M sought compensation from the Ministry of Defence. The MOD claimed immunity under section 10 of the Crown Proceedings Act 1947. This section, which was repealed in 1987, continues to apply to acts or omissions carried out before 1987. It provides for the Crown’s immunity from actions for compensation by members of the armed forces who died or suffered injury in the course of their duties.

As a preliminary issue, it was argued on behalf of M that section 10 of the 1947 Act was incompatible with the right to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights and incorporated into English law by the Human Rights Act 1998.

At first instance, the High Court made the following points:

· The aim of section 10 was to achieve efficiency and discipline in the armed forces. This aim could be undermined if personnel thought that they might be liable in negligence. The section imposed a blanket ban on negligence claims. The fact that it had been repealed in 1987 showed that that objective no longer needed to be met.

· Section 10 was incompatible with Article 6 because its all-embracing nature meant that it was not rationally connected to the limited objective which it was intended to achieve.

On appeal to the Court of Appeal, this decision was reversed. The Court ruled that a statutory provision which exempted the Crown from liability for injuries to members of the Armed Forces as a result of events occurring before 1987, and which thus deprived service personnel of their civil right to claim compensation and substituting a right to a pension,. was a provision of substantive law to which Article 6 and the Human Rights Act did not apply.

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