Norma Mitchell and The Defence Council and Secretary of State for Defence
| Jurisdiction | Northern Ireland |
| Judge | McAlinden J |
| Judgment Date | 13 May 2022 |
| Neutral Citation | [2022] NIQB 34 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 13 May 2022 |
1
Neutral Citation No: [2022] NIQB 34
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: McA11829
ICOS No: 18/79171/01/A01
Delivered: 13/05/2022
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
___________
QUEEN’S BENCH DIVISION
___________
BETWEEN:
NORMA MITCHELL
Plaintiff;
and
THE DEFENCE COUNCIL
and
SECRETARY OF STATE FOR DEFENCE
Defendants
___________
Mr Nick Hanna QC with Mr Donal Sayers QC (instructed by the Northern Ireland
Human Rights Commission) for the Plaintiff/Respondent
Dr Tony McGleenan QC and Mr Michael Egan (instructed by the Crown Solicitor’s
Office) for the Defendants/Appellants
___________
McALINDEN J
[1] This is an application under Order 18, rule 19 of Rules of the Court of
Judicature (Northern Ireland) 1980, originally dated 24 May 2019, and
subsequently amended on 4 October 2019, brought by the defendants in this
Action commenced by the plaintiff, Norma Mitchell, by means of an ordinary writ
of summons issued on 23 August 2018. By this application, the defendants seek to
have the plaintiff’s statement of claim struck out and/or the proceedings stayed
on the grounds that the statement of claim fails to disclose any reasonable cause of
action against the defendants and/or that it is an abuse of the process of the court.
The original statement of claim was dated 11 October 2018. It was subject to a
number of amendments, the last of which was made with the permission of the
court at the end of the second day of the hearing on 11 April 2022.
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[2] In this most recent iteration of the plaintiff’s claim, it is alleged that the
first-named defendant is a public authority vested with powers under sections 4, 6
and 8 of the Reserve Forces Act 1996 to make regulations making provision for the
payment of pensions, allowances and gratuities by the second-named defendant to
or in respect of any persons who are or have been members of the reserve forces.
It is further alleged that, in the exercise of those powers, the first-named defendant
made the Reserve Forces Non-Regular Permanent Staff (Pension and Attributable
Benefits Schemes) Regulations 2011 (‘the 2011 Regulations’). It is alleged that the
second-named defendant is the chair of the first-named defendant and the officer
of state accountable for its business.
[3] It is alleged that prior to his death on 3 March 2016, the late
Robert Maynard was a pensioner member of the Non-Regular Permanent Staff
Pension Scheme (‘the Scheme’) which had been established under the 2011
Regulations as a public sector non-contributory pension scheme established for the
benefit of non-regular permanent staff of the reserve forces. Mr Maynard had
been in pensionable service between October 1981 and April 2007. Although he
was unmarried, at the time of his death, Mr Maynard had been continuously
cohabiting with the plaintiff since 1988 in a stable, exclusive, long-term and
financially interdependent relationship.
[4] Following Mr Maynard’s death, the plaintiff applied by letter dated 3 April
2016 to the second-named defendant for a survivor’s pension under paragraph D3
of the Scheme. The plaintiff was informed by correspondence dated 13 April 2016
that her application for a survivor’s pension was refused because she was neither a
surviving spouse nor a surviving civil partner of the late Mr Maynard. Paragraph
8 of the Amended Amended Statement of Claim (’the SOC’) specifically alleges
that:
“The failure of the defendants … to secure or make
provision for the payment of a survivor’s pension
to or for the plaintiff under the Regulations
unlawfully discriminated against her, and
continues to unlawfully discriminate against her,
under article 14 of the European Convention on
Human Rights (‘ECHR’) taken in conjunction with
article 1 of the first protocol to the ECHR and/or
article 8 of the ECHR, and in consequence thereof
was, and continues to be, an unlawful act by virtue
of section 6 of the Human Rights Act 1998 …”
[5] The SOC goes on to list a number of reasons why the said “act” was and
remains unlawful. It is alleged that the failure of the defendants to make or secure
provision for the payment of a survivor’s pension to the plaintiff “and others in
similar circumstances” falls within the ambit of article 1 of the first protocol to the
European Convention on Human Rights (‘ECHR’ or ‘the Convention’) and/or the
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