Tort

Fatal accident claim - writ issued but not served - second writ issued - claimants not prevented from pursuing claimCachia and Others v Faluyi: CA (Lord Phillips of Worth Matravers, MR, Henry and Brooke LJJ): 27 June 2001Solicitors acting for three of the deceased's children issued, but never served, a writ claiming damages under the Fatal Accidents Act 1976.

Different solicitors subsequently issued and served on the defendant a second writ.

The question arose whether section 2(3) of the 1976 Act, which provided that 'not more than one action shall lie for and in respect of the same subject matter of complaint', disentitled the claimants from pursuing the claim initiated by the second writ.

On an application for a declaration, the judge held that section 2(3) provided that only one action could be brought, namely that commenced by the issue of the first writ, and he struck out the claim.

The claimants appealed.Patrick Lawrence (instructed by Glazer Delmar) for the claimants; Francis Treasure (instructed by L Dawson & Co) for the defendant.Held, allowing the appeal, that applying the traditional rules of statutory interpretation it was not possible to construe 'action' in section 2(3) as 'served process'; but that since 2 October 2000 the court had been under a duty not to act incompatibly with a right afforded by the schedule to the Human Rights Act 1998 and, so far as possible, to read and give effect to primary legislation compatibly with those rights; that accordingly 'action' could be interpreted as meaning 'served process' to give effect to the children's article 6(1) right of access to the court to claim compensation for loss of dependency; and that since the original writ had never been served section 2(3) of the 1976 Act did not bar the subsequent claim.

(WLR)