High Court has no jurisdiction to hear claim by former serviceman

08/11/21

Mr Justice Martin Spencer handed down judgment today in a case brought by a former serviceman against the Ministry of Defence. He held that the Court lacked jurisdiction to hear the claim.

The Claimant served in the army for 20 years before he was made redundant, against his will, in 2013. He pursued a complaint before the Service Complaint Panel, which foundd that errors were made in the process of selecting him for redundancy. However, it also held that, even if those errors had not been made, he would still have been made redundant.

The Claimant issued proceedings seeking damages for loss of earnings and pension entitlement. He relied on the alleged failure of the Ministry of Defence properly to apply the Queen’s Regulations for the Army (1975) (as amended) and the Army Terms of Service Regulations 2007 (the 2007 Regulations), which set out the process to be followed in relation to any military redundancy. His claim was pleaded in common law negligence and breach of statutory duty (there was some ambiguity concerning whether it was also pleaded as a claim in contract).

The Court affirmed the well-established proposition that servicemen are not engaged pursuant to a contract for employment. They have no justiciable rights in contract arising out of the Queen’s Regulations and the 2007 Regulations. It also held that this principle may not be “circumvented” by pleading what is in substance a claim for breach of contract as a claim in negligence and/or breach of statutory duty. The Court considered whether this result was an unlawful interference with the Claimant’s right of access to the Courts (for the purposes of Article 6 of the European Convention on Human Rights). It held that it was not. In that respect, it noted, in particular, that decisions of the Service Complaint Panel are amenable to judicial review, though the Claimant was long out of time to pursue such a challenge.

The judgment is here.