The Court of Appeal has handed down its judgment in a landmark challenge to the bereavement damages regime in the Fatal Accidents Act 1976 (“FAA”).

In Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors [2017] EWCA Civ 1916, the Court overturned the first instance judgment of Edis J ([2016] EWHC 2208 (QB)) and declared section 1A of the FAA incompatible with Article 14 (taken with Article 8) of the European Convention on Human Rights.

The incompatibility arises because cohabitees of 2 or more years standing (who, if dependent upon a deceased, are able to recover dependency damages under section 1 of the FAA) are unable to claim bereavement damages under section 1A.

The main judgment was given by the Master of the Rolls (with whom McCombe LJ and Sir Patrick Elias agreed).

The result may have wide-reaching implications, including the possibility of eventual legislative reform by Parliament (for which there has long been considerable support, including from the Law Commission, a previous Government and Mr Justice Edis in the first instance judgment).

The Secretary of State for Justice sought permission to appeal to the Supreme Court but this was refused by the Court of Appeal. It remains to be seen whether the application will be renewed to the Supreme Court itself.

Stephen McNamara, instructed by Zak Golombeck of Slater & Gordon, acted for Jakki Smith from the outset of her case in 2013.

Stephen acted as sole counsel during the underlying clinical negligence proceedings, which resulted in settlement and recovery of substantial dependency damages.

The Secretary of State for Justice was then joined as a Defendant in order to enable the present incompatibility proceedings to be brought.

Stephen was led in the High Court and Court of Appeal by Vikram Sachdeva QC of 39 Essex Chambers (with Catherine Dobson of 39 Essex Chambers also instructed as junior counsel). 


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