Elliot Gold appeared successfully against leading and junior counsel in persuading a court, on appeal, that CPR 11 has no application where the court has no jurisdiction to hear a claim at all, as opposed to where it has jurisdiction contingent on the agreement of the parties to submit to it.

The claimant issued a discrimination claim in the county court against a business that refused his application to enrol on a psychotherapy course. The defendant filed a defence before applying to strike-out the claim on the basis that only the employment tribunal had jurisdiction to hear it. At first instance, the court struck-out the claim. On appeal, the claimant said that the defendant had waived the issue of jurisdiction by failing to make an application under CPR 11 to dispute it, and relied on the Court of Appeal’s decision in Hoddinott v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203.

In a detailed judgment on this point, the court held that CPR 11 did not apply where the court had a total want of jurisdiction:

               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.

The judgment can be downloaded here.

Judgment was handed down on 11 February 2025 by the Administrative Court in the case of R (Di Maria) v Commissioner of Police of the Metropolis and Ors.

The Claimant is a Police Sergeant whose vetting was reviewed and withdrawn following concerns about his behaviour that had not resulted in any misconduct findings against him. He was referred to ‘gross incompetence’ proceedings under the Police (Performance) Regulations 2020 on the basis that without vetting clearance he was unable to perform his role as a police officer. Those proceedings were paused pending the Claimant’s claim for judicial review.

The Claimant’s case was considered as part of Metropolitan Police’s Operations Onyx and Assure which were designed to review the position of officers who have faced adverse information (particularly relating to sexual offending and domestic violence) and to improve compliance with national vetting standards, in response to the Baroness Casey, Dame Elish Angiolini and His Majesty’s Chief Inspectorate of Constabulary’s highly critical reports.

The Claimant brought what was described as a test case challenging the use of ‘conduct’ concerns in reviews of police vetting and the dismissal of officers for loss of vetting under the Performance Regulations. He argued that the College of Policing’s Vetting Code of Practice and APP Vetting, which stated that this was permissible, were unlawful.

Allowing the claim, Lang J found that:

• The Commissioner had the power to impose a minimum vetting requirement for police officers pursuant to his powers of direction and control, which the Claimant had disputed.
• The Commissioner did not have the power to dismiss a police officer for lack of vetting clearance; this was not provided for in any of statutory bases upon which a police officer could be dismissed.
• A police officer may not be found “grossly incompetent” or otherwise dismissed pursuant to the Police (Performance) Regulations 2020 consequent upon the withdrawal of their vetting clearance. The Commissioner had submitted (and the College of Policing’s publications state) that this provided a statutory basis upon which a police officer could be dismissed for lack of vetting clearance.
• Where a police officer has been investigated pursuant to the Police (Conduct) Regulations 2020 and found to have “no case to answer” a subsequent vetting review may not find that there are reasonable grounds to suspect that the same conduct occurred, save in exceptional circumstances.
• The Claimant’s Article 6 rights were breached by the failure to consider and determine whether he should be afforded the opportunity to call witnesses or cross-examine complainants, and by not giving him the opportunity to be legally represented,  in a vetting review process where the outcome was the removal of his minimum vetting clearance which makes it very likely that he will be dismissed and included in the Police Barred List.

The Judge did not go on to consider the Claimant’s rationality challenge to the decision to withdraw his vetting clearance.

The Commissioner will be seeking leave to appeal to the Court of Appeal.

It is anticipated that the Home Secretary will create Regulations to allow for the dismissal of officers who cannot maintain minimum vetting clearance.

The case has attracted significant media interest.

John Beggs KC, James Berry and Katherine Hampshire acted for the Commissioner.

Gerry Boyle KC and Aaron Rathmell acted for the College of Policing.

James Berry was featured by The Times as ‘Lawyer of the Week’ on 23 January 2025.

James was also featured in Legal Business magazine’s list of 10 ‘names to note’ of the 105 silks to be appointed on 24 March 2025.

The inquest investigating the deaths of five people including the Chairman of Leicester City Football Club Vichai Srivaddhanaprabha has concluded it was an accident.

Rachel Spearing, instructed by Patrick Slomski, Aviation & Aerospace Team Partner at Penningtons Manches Cooper LLP, represented Sloan Helicopters Limited.  The Jury found the helicopter “had all its appropriate airworthiness and maintenance certificates” and followed the directed findings of the Air Accident Investigation Branch (AAIB) with causation being due to the A169 helicopter’s tail rotor bearing seizing, which in turn caused the crash.

See coverage here.

The Senior Coroner continues to review prevention of future death issues raised by the AAIB currently under review by the Civil Aviation Authority and EASA.

David Lawson and Katherine Hampshire represented the local authority in two linked judicial review claims concerning accommodation and services under the Care Act 2014. The claims were heard over seven days from September to November 2024 by Mr Justice Fordham.

The Claimant lived in Home Office Bail accommodation with a local authority care package. The judgment considers:

(i) whether a local authority may take Home Office Bail accommodation into account when assessing and responding to care and support needs under the Care Act 2014;

(ii) the correct approach to assessing whether an individual has an accommodation-related need for care and services that might oblige a local authority to provide housing under the Care Act 2014;

(iii) whether ‘physical things’ such as an accommodation layout or shower rails can comprise an accommodation related care need.

The judgment reviews case law under the National Assistance Act 1948, the Care Act 2014 as well as its statutory guidance and supporting regulations. The judgment finds that bail accommodation is legally “residual” (like asylum accommodation) and analyses how this conclusion can be applied to the Care Act 2014. It rejects the idea that physical things can be a need for care and support.

The judgements in BLZ2 [2025] EWHC 154 (Admin) is available here and BLZ1 [2025] EWHC 153 (Admin) is available here.

We are delighted to announce that Rachel Spearing has been shortlisted for the Female Trailblazer of the Year award by the Clio Modern Law Awards 2025.

Established in 2013, the Clio Modern Law Awards is a prestigious event that celebrates excellence and innovation within the legal industry. This event brings the legal sector together to celebrate the triumphs of all legal professionals within the UK, particularly those who are making invaluable contributions to a number of areas right across the sector.

Thank you to our clients for their support and congratulations to all others shortlisted.

View more about Rachel and her practice here.

See the full list of those shortlisted here.

We are delighted to announce the forthcoming appointments of George Thomas, Rachel Spearing and James Berry as King’s Counsel. They will be sworn in during a ceremony expected to take place at Westminster Hall in March.

Congratulations from all of us at Serjeants’ Inn to George, Rachel and James and many thanks to all those who participated in the application process as referees.

This morning, the Court of Appeal overturned Mr Justice Ritchie’s judgment in Woodcock and upheld Mr Justice Martin Spencer’s judgment in HD and others.

Matthew Holdcroft and Cecily White, led by Andrew Warnock KC of Deka Chambers, represented the successful Chief Constables in both cases which concerned liability of the police for the criminal actions of a third party and alleged police failure to investigate.

This is a very significant judgment. In brief:

• A generalised risk of future ill-treatment within Article 3 does not trigger the investigatory duty.
•  A duty (under Article 3) cannot exist before it was owed.
• Foreseeability of harm is not sufficient to give rise to a duty (even a narrow one on these facts).
•  A claimant that relies on an alleged assumption of responsibility will usually require a specific representation or promise to take a particular action.
•  A claim based on an assumption of responsibility will generally also require reliance (not in the case of e.g. a vulnerable child) on the representation to be proved.

The judgment will help clarify the merits of both negligence and Article 3 claims, and resolves what many considered an anomaly created by Ritchie J.

Please click here for a copy of the judgment.