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.