CPR 11 AND THE PRINCIPLES IN HODDINOTT DO NOT APPLY IN A CASE WHERE THE COURT HAS NO JURISDICTION AT ALL: AN INTERESTING JUDGMENT
I am grateful to Elliot Gold, barrister, for sending me a copy of the decision of HHJ Bloom in Davidson -v- The London Centre of Psychodrama, a copy of which is available here DavidsonJudgment. The judge, among other issues, considered whether the principles in Hoddinott v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203, CPR Part 11 and acceptance of the jurisdiction applied in cases where, by statute, the County Court had no jurisdiction.
“It cannot be that a party can waive the issue of jurisdiction where the County Court has no such jurisdiction. This court is an inferior court. Parliament has conferred jurisdiction on the County Court in respect of some but not all parts of the Equality Act. The defendant cannot be said to have submitted to the jurisdiction of the court if the court has no such jurisdiction at all. The procedural rules of CPR 11 cannot give the claimant a jurisdiction that does not as a matter of law exist. If as a matter of statute, this court cannot hear a claim, I do not understand CPR 11 to be conferring jurisdiction on the parties.”
THE CASE
The claimant issued proceedings in the county court against the defendant claiming damages for discrimination, victimisation and other matters. The defendant filed a defence. The defendant then applied to strike out applied to strike out the action. One of the issues was whether the county court had jurisdiction to try the claim. The defendant argued the the relevant statute, quite specifically, did not give the county court jurisdiction to hear this type of action.
The district judge struck out the action. One of the grounds of striking out was that the county court that the court had no jurisdiction. The claimant appealed – arguing that by failing to make an application under CPR Part 11 to dispute the jurisdiction the defendant had accepted jurisdiction and could not take the point.
COULD THE DEFENDANT RAISE THE QUESTION OF JURISDICTION
HHJ Bloom did not accept the claimant’s arguments. The judge found that CPR 11 did not apply in a case where, by statute, the court had no jurisdiction at all.
“GROUND ONE The Court was wrong to restrict the scope of the term “jurisdiction” in CPR 11 and the judgment in Hoddinott v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203 to cases concerning jurisdictional defences in respect of the initiation of the claim, non-service, mis-service or the validity of the claim form.
16. The claimant said that CPR 11 and the case of Hoddinott meant that the defendant could not raise the issue of want of jurisdiction as they had submitted to the same by filing an Acknowledgement of Service (“AOS”) in which they did not dispute jurisdiction and filed a Defence. The DJ concluded in para 152-154
“152 That, in my view, rather misses the point. In the line of authorities referred to in the White Book, of which Hoddinott is but one example, they are all instances where ‘but for’ the various transgressions of failing to serve a claim form or letting a claim form expire etc, the Court would have had jurisdiction to deal with the claim in any event. The argument in all those cases was that because of the transgressions the correct approach should have been for the defendants to have applied under CPR 11 to assert that because of the transgression (e.g. that the validity of the claim form had expired) the Court no longer had jurisdiction to deal with the matter. Where the defendant failed to do that they were to be treated as having accepted the jurisdiction of the court notwithstanding that they would otherwise have had a procedural defence.
153. In this instance, however, the Act specifically excludes the County Court from having any jurisdiction at all to deal with Part 5 cases and whilst jurisdictional in nature the LCP are advancing it as a Defence which, if successful, would operate as a complete defence.
154. Mr Quintavalle is therefore not, in my view, correct to say that the LCP have accepted the Court’s jurisdiction at this stage because the Court, as a matter of law, has no jurisdiction in the first place. What the LCP is raising, and has properly pleaded, is whether the Act can apply at all, which operates as a defence and can be raised at this stage. It is not a CPR 11 point.”
17. CPR 11 is headed “Disputing the Court’s Jurisdiction”.
CPR 11(1) A defendant who wishes to
(a) dispute the court’s jurisdiction to try the claim or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction and should not exercise any jurisdiction which it may have.
18. The Rule provides that the defendant must files its AOS in accordance with CPR 10 and doing so is not a submission to jurisdiction; any application under CPR 11 must be made within 14 days of filing the AOS and be supported by evidence (CPR 11.4(a)). If the defendant does not make the application within 14 days of filing its AOS, the defendant “shall be treated as having accepted that the court has jurisdiction to try the claim”.
19. Mr Fetto KC argued that as the defendant filed an AOS and did not make a CPR11 application but filed a Defence, it cannot challenge the jurisdiction of the court to hear the claims on the basis of its personal status. The defendant has to be treated as having accepted the court’s jurisdiction “to try the claim”. He said that section 114 of the Equality Act has given the county court jurisdiction to try Part 3 and Part 6 claims and this claim is brought by reference to those Parts, hence the court has jurisdiction.
20. The case of Hoddinott was brought to my attention and relied on heavily by the claimant in this context. I was referred to the decision at paragraphs 21-24 where the court held that the definition of “jurisdiction” is not exhaustive. “The word “jurisdiction” is used in two different senses in the Civil Procedure Rules. One meaning is territorial jurisdiction as used in CPR 2.3 and rules regarding service out of the jurisdiction (CPR 6.20). But in CPR 11, the word does not denote territorial jurisdiction but is a reference to the court’s authority to try a claim.
“There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR 11(1)(a)) or that the court should not exercise its jurisdiction to try a claim (CPR 11(1)(b). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment CPR 11(1)(a) is engaged in such a case. It is no answer to say that service of a claim form out of time does not if itself deprive the court of its jurisdiction and that it is no more than a breach of a rule of procedure namely CPR 7.5(2). It is the breach of this rule which provides the basis for the argument by the defendant the court should not exercise its jurisdiction to try the claim.”
The court concluded that therefore CPR 11 was engaged.
WAS CPR PART 11 ENGAGED IN THIS CONTEXT?
21. Mr Fetto KC submitted that the court has jurisdiction to deal with the claim as pleaded under Parts 3 and 6. The case law shows that the aim of CPR 11 is to ensure jurisdictional points are taken early so as to save time and costs. He took me to Dicey and Morris and said that by filing the Defence, the defendant had submitted in personam to the jurisdiction. CPR 11 is addressing the court’s authority or power to try the claim. The defendant has submitted to the court’s jurisdiction to hear claims under Part 3 and 6 of the Equality Act by filing its Defence. The defendant cannot any longer rely on its personal status to argue that the court does not have jurisdiction.
22. Mr Gold took me through the history of the genesis of CPR 11. He took me back to the earlier RSC Order 12.8 and applications to stay on forum conveniens grounds which were brought together under CPR 11. He pointed to the fact that the old RSC Order 12.8 provided that a defendant who wished to dispute the jurisdiction of the court by reason of irregularity or other ground was required to give notice of intent to defend and apply for orders such set aside writ or service etc. He reminded me of the Civil Procedure Act 1997 section 1(2) which provides that the Civil Procedure Rules Committee must make rules of court called Civil Procedure Rules to govern the practice of the County Court, High Court and Court of Appeal. The aim of the rules is to secure that the justice system is accessible, fair and efficient.
23. Mr Gold argued that a “qualifications body” is a body that confers a relevant qualification needed for a particular trade and that it is not allowed to engage in unlawful discrimination under section 53. Section 53 fell within Part 5 and hence was only actionable in the Employment Tribunal. A body cannot be a qualifications body and an educational institution (section 54(4)(c) and Part 3 cannot apply to discrimination already prohibited by Part 5 (see s28(2)).
24. The point was made that the county court is an inferior court of record. The court cannot act outwith the power that Parliament has bestowed on the court by statute. CPR 11 applies where the court can waive jurisdiction. It is of no relevance where there is no jurisdiction at all. Mr Gold took me to R v The Judge of County Court of Shropshire [1887] QB 242 where the court made the point that there may be cases where the High Court will not grant prohibition because a party has submitted to the jurisdiction of the court, but that argument does not apply where there is no jurisdiction for the inferior court to act. In those circumstances, the High Court will act to keep the inferior court within its jurisdiction. He took me to Forsyth v Forsyth [1948] Probate 125 where Court of Appeal said that cases involving submission to a competent foreign court had “no application to courts of inferior jurisdiction in this country which derive their jurisdiction from statute. If such an inferior court lacks jurisdiction parties cannot, by agreement or otherwise, confer jurisdiction upon it. An instance of this principle is to be found in Foster v. Usherwood (1877) 3 Ex D1.3, where, discussing the jurisdiction of the county court, Bramwell L.J., said: “It is urged that consent has waived the objection. I do not understand what is meant by waiving the objection. In this case the registrar had no jurisdiction to make the order to try the action in a county court. The parties cannot by consent confer a jurisdiction which does not exist.”
25. I was referred to Sedley LJ in R(Shah) v IAT [2004]EWCA Civ 1665 where he said regarding CPR 11 that “It may well be that in the class of case in which jurisdiction can be shown not to exist at all- the first class contemplated by CPR 11(1) – the procedural inhibitions on taking the point have to yield …to the principle that jurisdiction cannot be created by consent or acquiescence.”
26. In R(Williams) v SS Energy and Climate Change and others [2015] EWHC 1202 the issue of jurisdiction was not raised until the conclusion of the rolled-up permission
hearing. Notwithstanding, Lindblom J stated in the context of CPR 11, that if there is a legislative bar on the court’s jurisdiction such as a statutory time limit within which the relevant challenge must be made, the court cannot have jurisdiction conferred upon it by procedural rule. He concluded that there was no jurisdiction to determine the claim and it could not be generated by agreement or mutual mistake of the parties.
27. Mr Gold accepted that none of these authorities considered CPR 11 in detail but said that when read with the history of CPR 11 and its inception it is clear that it can only be referring to a challenge to the contingent want of jurisdiction that a party could waive. It cannot be referring to total want of jurisdiction that cannot be waived.
28. Mr Fetto KC responded that Shah was obiter; the court in Williams did not have Hoddinoff cited to it. Older cases are not cases where the CPR was relevant as they predated their existence so were of limited assistance.
THE JUDGE’S DECISION
Conclusion
29. I agree with Mr Gold’s analysis. The historical background to this rule is important in my assessment. It is clear that the Rule arose from an amalgam of issues relating to forum non conveniens and RSC Order 12.8. The focus was on irregularities that would mean a defect of jurisdiction could be waived. Whilst Shah was obiter it was cited and approved in R(Williams). I accept that Hoddinott was not cited but that does not take away from what in my view is the correct approach. It cannot be that a party can waive the issue of jurisdiction where the County Court has no such jurisdiction. This court is an inferior court. Parliament has conferred jurisdiction on the County Court in respect of some but not all parts of the Equality Act. The defendant cannot be said to have submitted to the jurisdiction of the court if the court has no such jurisdiction at all. The procedural rules of CPR 11 cannot give the claimant a jurisdiction that does not as a matter of law exist. If as a matter of statute, this court cannot hear a claim, I do not understand CPR 11 to be conferring jurisdiction on the parties. CPR 11 is addressing situations where there are procedural matters that could mean the court in the particular circumstances has no jurisdiction as the claimant has failed to act in a certain manner; however, aside from the procedural matters, the court has jurisdiction. I do not read Hoddinott as purporting to give the court jurisdiction to hear a cause of action that the court would not otherwise have as a matter of statute. If the defendant was within Part 5 of the Act, then there was no jurisdiction in the County Court to hear the claim. The claim must fail as the defendant was not within Part 3 or 6.
30. I am satisfied that Mr Gold’s analysis is correct. The procedural rules take second place to statute. If the court as an inferior court of record is not entitled to hear a cause of action as it does not fall within its remit, the defendant cannot submit to the jurisdiction of the court. The whole claim is outwith the court. Where there is a procedural issue which means that, if established, the court has no jurisdiction to consider the claim, that is very different to situations where there is no underlying jurisdiction. For these reasons the DJ reached the correct decision. This is a rolled-up hearing. I give permission to appeal but dismiss the appeal on this ground.