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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (A Minor) v Ministry of Justice [2009] EWCA Civ 419 (29 January 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/419.html Cite as: [2009] EWCA Civ 419 |
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OF
JUDICATURE
COURT OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE TRIGGER)
![]() ![]() Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE RIX
and
MR JUSTICE
BENNETT
____________________
M (a ![]() ![]() |
Appellant |
|
- and - |
||
![]() MINISTRY OF JUSTICE ![]() |
Respondent |
____________________
of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
of
the Appellant.
Mr J Roussak (instructed by the Treasury Solicitor) appeared on behalf of
the Respondent.
____________________
OF
JUDGMENT
Crown Copyright ©
Lord Justice Rix
:
"A numberof
prisoners have stated that staff were present when [the father] threatened to kill himself, staff say that this was not the case. There is no independent evidence to support either position."
"took his life whilst emotionally unbalanced and in part because the riskof
his doing so was not recognised. Therefore appropriate precautions were not taken to prevent him doing so."
The letter concluded by saying that the writer trusted that liability for the father's death would not be an issue and that the solicitors looked forward to receiving a decision as soon as possible, and not later than three months from the date of
that letter.
"It is fairness to both parties which, at the endof
the day, is the bedrock
of
the decision as to which it is equitable to permit the action to proceed.
17. Taking into account all the factors I have endeavoured to consider, in my judgment it would not be equitable to permit this action to proceed and, accordingly, the claim is dismissed."
7. Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may --
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victimof
the unlawful act.
…
3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victimof
that act.
4) If the proceedings are made by wayof
a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim
of
that act.
…
(5) Proceedings under subsection (1)(a) must be brought before the endof
--
(a) the periodof
one year beginning with the date on which the act complained
of
took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
23. But in CPR 11(1) the word does not denote territorial jurisdiction. Here it is a reference to the court's power or authority to try a claim. There may be a numberof
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)(b) is engaged in such a case. It is no answer to say that service
of
a claim form out
of
time does not
of
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 that the court should not exercise its jurisdiction to try the claim."
Dyson LJ referred to previous decisions at first instance which had come to a similar conclusion, in paragraph 24 of
his judgment.
"17. It was submitted that the Parole Board's reliance upon the limitation defence in s.7of
the HRA went to the jurisdiction
of
the court within the meaning
of
that term as used in CPR Part 11. Although it could not be argued that this was a case where the Parole Board could dispute the court's jurisdiction to try the claim under CPR 11(1)...a), this was a case where the Parole Board was arguing the court should not exercise its jurisdiction within CPR 11(1)(b)."
"19. I do not consider that the decision in Hoddinott as to the scopeof
CPR 11(5) applies to the present application. Hoddinott was a case where the service
of
the claim form was necessary to give the court jurisdiction to try the case in the sense
of
having the authority and power to do it; the two first instance cases referred to at paragraph 24
of
Hoddinott were similarly concerned with service as was the appeal in Uphill v BRB (Residuary) Ltd. The court in the present case had the power and authority to try the claim as the proceedings had been commenced and served; the Parole Board were not seeking to contest that power nor to contend that the court should not exercise its jurisdiction.
20. What the Parole Board was seeking to do was to rely on s.7(5) as providing a defence to the claim and to contend that the claimant had no reasonable grounds for bringing the claim and no real prospectof
success. It is clear, in my view that limitation provisions provide a defence to the claim; they do not go to jurisdiction. Such provisions have generally been treated under the law
of
England and Wales as procedural. There is no basis for categorising the limitation provisions
of
the HRA in a different way: see also paragraph 112
of
the opinion
of
Lord Rodger
of
Earlsferry in Somerville v Scottish Ministers [2007] UKHL 44. Similarly the contention that there were no reasonable grounds for bringing the claim and that the claim had no real prospect
of
success did not go to the jurisdiction
of
the court; it went to an assessment
of
the claim that was before the court.
21. In my view therefore the argument put forward is misconceived."
"that is subject to any rule imposing a stricter time limit in relation to the procedure in question."
That is a direct reference to the possibility of
Limitation Act time limits being stricter than the time limits imposed under section 7(5) itself. It is to be noted that the expression "time limits" is the basic word used to describe limitation in section 1
of
the Limitation Act itself, which begins:
"This Partof
this Act gives the ordinary time limits for bringing actions
of
the various classes mentioned in the following provisions
of
this Part."
Lord Neuberger:
Mr Justice Bennett:
Order: Appeal dismissed