Ian Craig Malone v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Martin Spencer,Mr Justice Martin Spencer |
| Judgment Date | 08 November 2021 |
| Neutral Citation | [2021] EWHC 2958 (QB) |
| Docket Number | Case No: QB-2019-004577 |
| Court | Queen's Bench Division |
[2021] EWHC 2958 (QB)
Mr Justice Martin Spencer
Case No: QB-2019-004577
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Nicholas Barnes (instructed by Biscoes Legal Services Ltd) for the Claimant/Respondent
Mr Tim Johnston (instructed by the Government Legal Department) for the Defendant/Applicant
Hearing dates: 19 October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
By this application the Defendant Ministry of Defence (“MOD”) challenges the jurisdiction of the court to hear this claim by the Claimant, Ian Craig Malone, arising out of Mr Malone's service as a soldier in the army. Alternatively, the MOD seeks to strike out the claim on the basis that it discloses no reasonable cause of action or is an abuse of process or has no real prospect of success.
Background Facts
The Claimant, who was born on 27 January 1977, joined the army on 11 February 1998 for a 22 year term of service with a prospective termination date of 23 February 2020. He joined the Royal Electrical Mechanical Engineers and trained to become a vehicle mechanic. He had various deployments including in Germany, Canada and the Falkland Islands. In August 2001 he was promoted to Lance Corporal and he was promoted to Full Corporal in February 2007. At the beginning of 2010, he passed the Higher National Diploma in Automotive Engineering and was promoted to Staff Sargeant.
In around January 2012, the MOD implemented a series of compulsory redundancy programmes and this led to the Claimant being discharged from the Armed Forces on 11 June 2013. Prior to that, on 24 February 2012, the Claimant filed a Service Complaint in which he sought to challenge the contents of a Soldier Joint Appraisal Report (“SJAR”) which was relevant to his being selected for redundancy. The Claimant's Service Complaint was considered by an Army Service Complaint Panel (“SCP”) on 13 January 2015 and there was an oral hearing on 24 April 2015. On 16 September 2015 it was found that the Claimant had been wronged and the SCP decided to seek evidence to determine what, if any, redress was appropriate. It was directed that the SJAR in question be expunged from his record and that he be regraded in relation to his selection for redundancy. The SCP's final determination was in March 2016 when it was determined that the Claimant had been wronged within the meaning of the Armed Forces Act 2006 but the only redress was the issue of an apology for any detriment the Claimant had suffered as a result of having been wronged and for the length of time it had taken to resolve his complaint. The reason that no more substantive redress was awarded was that the Regrading Board gave the Claimant a score of 23.5 points and the threshold for selection for compulsory redundancy was a score below 28 points. It was accordingly determined that, but for the wrongful and unfair SJAR, the Claimant would have been selected for redundancy in any event and he had therefore suffered no loss.
On 13 April 2017, solicitors acting for the Claimant, Messrs Biscoes, sent a Letter of Claim to the MOD. It is perhaps instructive and significant that the Letter of Claim stated, near the start, “This is a claim for damages for wrongful dismissal/breach of contract.” The letter set out the terms on which the Claimant's service was governed, derived from The Queen's Regulations for the Army 1975 which laid down “The policy and procedure to be observed in the command and administration of the Army” together with the Army Terms of Service Regulations 2007. It was alleged that The Queen's Regulations and the 2007 Regulations formed express or implied terms of the contract between a member of the military services and the MOD. The letter challenged the finding that the Claimant would have been made redundant in any event and asserted that he had sustained significant financial losses.
The Government Legal Department, acting for the MOD, responded on 19 July 2017, asserting, so far as the merits of the claim were concerned, that the apology was appropriate and sufficient redress. The alleged financial losses were challenged including those based upon the assumption that, but for his redundancy, the Claimant would have obtained promotion to Warrant Officer Class 2, thereafter Sargeant Major. At the conclusion of the letter the following was stated:
“The defendant avers that the terms of engagement of members of the Armed Forces do not constitute a contract of service. The claimant was appointed by the Crown under the royal prerogative, and held his appointment at the Crown's pleasure. The claimant is subject to dismissal at any time without notice and without any cause being assigned and the courts will not entertain an action for breach of contract and/or wrongful dismissal.”
These proceedings
The Claim Form was issued on 24 May 2019 stating the claim as follows:
“The claimant claims damages arising from his past engagement in HM Armed Forces and his compulsory redundancy therefrom in which the defendant acted in breach of his terms of service, or acted negligently or in breach of The Queen's Regulations to the Army 1975, the Army Terms of Service Regulations 2007 (as amended) and the Army Compulsory Redundancy DIN tranche 2 reference 2012DIN01-017.”
The value of the claim was put at £166,075.
The claim is supported by Particulars of Claim. Paragraph 8 states:
“The claimant asserts, among other things, that:
a) The Army is not able to act outside their provisions, including The Queen's Regulations and the 2007 Regulations concerning discharging the claimant for reasons of redundancy and is thus bound by them and their effect;
b) The Army is under a duty, including a duty of care, not to discharge for reasons of redundancy outside their provisions, including The Queen's Regulations and the 2007 Regulations; and/or
c) There is an implied term of mutual trust and confidence between the claimant and the defendant so that the latter will not, without reasonable and proper cause, so conduct itself in its dealings with the claimant or third parties to destroy or seriously damage that or affect the claimant's prospects.”
Having set out the facts surrounding the Claimant's selection for redundancy and the making of his service complaint, there is then a section headed “Breach” stating as follows:
“29. The defendant acted in breach of the terms of service between the Army and the claimant, or acted negligently, in discharging the claimant contrary to The Queen's Regulations, the 2007 Regulations and/or Tranche 2 in that:
a) It dismissed the claimant for reason of redundancy before the Army had determined his Service Complaint that plainly could affect eligibility under Tranche 2; …
f) The Army did not fairly, properly and/or reasonably appraise the claimant in rank for the second time;
g) Had the Army fairly, properly and/or reasonably appraised the claimant in rank for the second time, it is more likely than not that he would have received a score exceeding the redundancy threshold;
h) The Army acted unfairly, illogically and/or contrary to clear published criteria; and/or
i) The defendant has breached the term of mutual trust and confidence between the Army and the complainant without reasonable and/or proper cause thereby destroying, seriously damaging or affecting the claimant's prospects.”
On 17 June 2019, the MOD issued an Acknowledgment of Service and ticked the box indicating an intention to contest jurisdiction. The solicitor with conduct of the matter on behalf of MOD, Mr John Bolton, was away and in his absence his colleague, Ms Buket Zencirkiran, telephoned the claimant's solicitor, Mr Richard Barnes, on 27 June 2019 in order to request a 28 day extension for the filing and service of the defence in order to contest jurisdiction (see Ms Zencikiran's statement of 19 January 2021 at paragraph 12). Mr Barnes' attendance note, made on 3 July 2019, recorded:
“GLD telephoned requesting an extension of 28 days for service of the defence. I asked why they were disputing jurisdiction.”
It is to be noted that he omitted the words “in order to contest jurisdiction” which Ms Zencikiran states she included. However, I have no doubt that she did include those words because it is agreed between her and Mr Barnes that he immediately asked why jurisdiction was being disputed and that question fits much better with Ms Zencikiran's account of the conversation than with Mr Barnes' account. The request for an extension of time to serve the defence is relied upon by Mr Nicholas Barnes (who is not related to Mr Richard Barnes) on behalf of the claimant as amounting to the MOD having submitted to the jurisdiction. However, I have no difficulty whatever in rejecting this submission. Having ticked the appropriate box in the Acknowledgment of Service and having stated that the request for an extension of time to serve the defence was “in order to contest jurisdiction” the MOD was making it abundantly clear that jurisdiction was and remained contested. Furthermore, the conversation was followed by the MOD's Application Notice dated 1 July 2019 seeking a declaration that the court had no jurisdiction to hear the claim and/or should not exercise jurisdiction and for an order that the Claim Form and the Particulars of Claim be struck out.
On 23 August 2019, DDJ Dack transferred the...
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