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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Malone v Ministry of Defence  EWHC 2958 (QB) (08 November 2021)
Cite as:  EWHC 2958 (QB),  3 All ER 775,  WLR(D) 566,  ICR 478
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Ian Craig Malone
|- and –
|Ministry of Defence
Mr Tim Johnston (instructed by the Government Legal Department) for the Defendant/Applicant
Hearing dates: 19 October 2021
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down by the judge remotely by circulation to the parties' representatives and BAILII by email. The date of hand-down is deemed to be as shown above.
MR JUSTICE MARTIN SPENCER :
"The defendant avers that the terms of engagement of members of the Armed Forces do not constitute a contract of service. The claimant was appointed by the Crown under the royal prerogative, and held his appointment at the Crown's pleasure. The claimant is subject to dismissal at any time without notice and without any cause being assigned and the courts will not entertain an action for breach of contract and/or wrongful dismissal."
"The claimant claims damages arising from his past engagement in HM Armed Forces and his compulsory redundancy therefrom in which the defendant acted in breach of his terms of service, or acted negligently or in breach of The Queen's Regulations to the Army 1975, the Army Terms of Service Regulations 2007 (as amended) and the Army Compulsory Redundancy DIN tranche 2 reference 2012DIN01-017."
The value of the claim was put at £166,075.
"The claimant asserts, among other things, that:
a) The Army is not able to act outside their provisions, including The Queen's Regulations and the 2007 Regulations concerning discharging the claimant for reasons of redundancy and is thus bound by them and their effect;
b) The Army is under a duty, including a duty of care, not to discharge for reasons of redundancy outside their provisions, including The Queen's Regulations and the 2007 Regulations; and/or
c) There is an implied term of mutual trust and confidence between the claimant and the defendant so that the latter will not, without reasonable and proper cause, so conduct itself in its dealings with the claimant or third parties to destroy or seriously damage that or affect the claimant's prospects."
Having set out the facts surrounding the Claimant's selection for redundancy and the making of his service complaint, there is then a section headed "Breach" stating as follows:
"29. The defendant acted in breach of the terms of service between the Army and the claimant, or acted negligently, in discharging the claimant contrary to The Queen's Regulations, the 2007 Regulations and/or Tranche 2 in that:
a) It dismissed the claimant for reason of redundancy before the Army had determined his Service Complaint that plainly could affect eligibility under Tranche 2; …
f) The Army did not fairly, properly and/or reasonably appraise the claimant in rank for the second time;
g) Had the Army fairly, properly and/or reasonably appraised the claimant in rank for the second time, it is more likely than not that he would have received a score exceeding the redundancy threshold;
h) The Army acted unfairly, illogically and/or contrary to clear published criteria; and/or
i) The defendant has breached the term of mutual trust and confidence between the Army and the complainant without reasonable and/or proper cause thereby destroying, seriously damaging or affecting the claimant's prospects."
"GLD telephoned requesting an extension of 28 days for service of the defence. I asked why they were disputing jurisdiction."
It is to be noted that he omitted the words "in order to contest jurisdiction" which Ms Zencikiran states she included. However, I have no doubt that she did include those words because it is agreed between her and Mr Barnes that he immediately asked why jurisdiction was being disputed and that question fits much better with Ms Zencikiran's account of the conversation than with Mr Barnes' account. The request for an extension of time to serve the defence is relied upon by Mr Nicholas Barnes (who is not related to Mr Richard Barnes) on behalf of the claimant as amounting to the MOD having submitted to the jurisdiction. However, I have no difficulty whatever in rejecting this submission. Having ticked the appropriate box in the Acknowledgment of Service and having stated that the request for an extension of time to serve the defence was "in order to contest jurisdiction" the MOD was making it abundantly clear that jurisdiction was and remained contested. Furthermore, the conversation was followed by the MOD's Application Notice dated 1 July 2019 seeking a declaration that the court had no jurisdiction to hear the claim and/or should not exercise jurisdiction and for an order that the Claim Form and the Particulars of Claim be struck out.
"15. Another example of the flawed nature of the claim is that it is not sufficient to allege that there has been a breach of a statutory duty. The claimant must show that the alleged breach gave rise to the right to bring a civil action. In the present action, the claimant fails to and cannot do so."
The detail of the defendant's position and arguments was not, however, included in Mr Bolton's statement and first fully emerged in the skeleton argument of Mr Johnston prepared for the hearing before me. This was a matter of complaint at the hearing by Mr Barnes but Mr Johnston's skeleton argument, dated 8 October 2021, was served well in advance of the hearing and I take the view that the claimant's legal advisors had ample time to consider and deal with the defendant's arguments which are, in any event, principally matters of law. No application for an adjournment was made by Mr Barnes and he did not indicate that he needed an adjournment to deal with the arguments.
The case for the applicant (MOD)
The argument for the Respondent (Claimant, Mr Malone)
"The duty of care owed by the MOD, as employer, to the members of the armed forces as their employees, does exist and has been recognised, without demur, by the courts. It includes a duty to provide safe systems of work and safe equipment, as I have demonstrated. There was no suggestion that the courts were ill-equipped to deal with such issues, or that the resolution of the claims would be detrimental to the troops. The question whether a duty of care owed by the MOD to armed forces should be recognised has long since been answered."
Equally, he submits that the MOD has a statutory duty to act within the provisions of the Queen's Regulations for the Army (1975) and the Army Terms of Service Regulations 2007 and that a failure to do so gives rise to an action in tort for breach of statutory duty. He submits:
"Accordingly the claimant avers that whilst the regulations themselves may not be a contract of employment between the parties, the defendant cannot act outside the Queen's Regulations' provision concerning discharging him. The defendant chose to be bound by them when making the claimant redundant. They and their effect thus bind the defendant."
Mr Barnes relies on the provisions of sections 1 and 2 of the Crown Proceedings Act 1947 as showing that the defendant is no longer immune from liability to members of the armed forces in tort and that this claim is therefore justiciable because it is founded in negligence and breach of statutory or regulatory duty.
"Redress of individual grievances: Service Complaints
1) If -
(a) A person subject to service law thinks himself wronged in any matter relating to his service, or
(b) A person who has ceased to be subject to service law thinks himself wronged in any such matter which occurred while he was so subject,
he may make a complaint about the matter under this section (a "service complaint")
Mr Barnes relies on the word "may" and submits that the only provision which makes the making of service complaint a precondition to the making of a claim is contained in the Employment Rights Act 1996 but there is no statutory provision providing that the making of a service complaint is a precursor to any other sort of claim or that other claims are excluded.
"For my part, I would have no doubt at all that when Mr Quinn enlisted in the Royal Navy pursuant to the King's Regulation neither he nor the Crown had any intention to create legal relations. Further, as a matter of public policy, following the decisions to which I have referred there is binding authority that there is no such contract" (emphasis added).
Thus, as has been recognised by Mr Barnes, any claim founded upon an alleged contract between the claimant and the Ministry of Defence is bound to fail.
"Liability of the Crown in tort
i) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:
(a) In respect of torts committed by its servants or agents;
(b) In respect of any breach of those duties which a person owes to his servant or agents like common law by reason of being their employer; and
(c) In respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property …
ii) Where the Crown is bound by a statutory duty which is binding also upon persons other than the Crown and its officer, then, subject to the provisions of this Act the Crown shall, in respect of a failure to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so subject if it were a private person of full age and capacity.
iii) Where any functions are conferred or imposed on an officer of the Crown either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Crown."
Thus, military personnel have, since the Crown Proceedings Act 1947, been able to sue the Ministry of Defence for personal injuries arising from negligence or from breach of statutes such as the Health and Safety at Work Act and Mr Johnston conceded that servicemen are owed a duty of care by the Crown. However, in my judgment, this does not extend, as the claimant asserts, to a duty of care in the way that the Crown exercises its functions under the Queen's Regulations. The Queen's Regulations and the provisions of the Armed Forces Act 2006, part 14 (now part 14A) are provisions which govern the service of the claimant as a soldier in the army and although there is no contract of employment as such, they are akin to the terms of the contract of employment which would have applied had the parties intended to enter into legal relations when the claimant signed up to join the army. Thus, in my judgment, any claim made by reference to the Queen's Regulations or the Armed Forces Act 2006 falls within the umbrella of non-justiciability which results from the fact that there is no contract of employment and no intention on the part of the parties, when a person enlists in the army, to create legal relations. That umbrella of protection for the Crown is not pierced or removed by framing the claim in tort, whether as a claim of negligence or as a claim for breach of statutory duty, when the remedy claimed is damages by reference to the terms of the Queen's Regulations or part 14 of the Armed Forces Act (2006).
"This is a claim for damages for wrongful dismissal/breach of contract."
The basis for the claim could not have been put more clearly. Then, when one looks at the Particulars of Claim, it is clear that the allegations of "breach" at paragraph 29 are framed by reference to complaints in respect of how the Queen's Regulations, the 2007 Regulations and part 14 of the Armed Forces Act 2006 were applied by the defendant. Thus, paragraph 29 pleads:
"The defendant acted in breach of the terms of service between the Army and the claimant, or acted negligently, in discharging the claimant contrary to the Queen's Regulations, the 2007 Regulations and/or the Tranche 2 in that:
a) It dismissed the claimant for reason of redundancy before the army had determined his service complaint that plainly could affect eligibility under Tranche 2;
b) Contrary to Tranche 2 the SGB and/or SCP regraded the claimant on one in-rank SJA;
c) Contrary to Tranche the SGB and/or SCB regraded the claimant when he was ineligible for redundancy, or it was a reasonable prospect that he would be ineligible for redundancy"
and so forth.
Then, when it comes to loss and damage, it is pleaded that financial loss has been incurred by the claimant by reference to his selection for redundancy including loss of the opportunity to earn wages and allowances, loss of access to service benefits and loss of the opportunity to obtain promotion. The foundation for all these alleged losses is the claimant's selection for redundancy by the MOD and that, in turn, is archetypally a matter relating to terms of service and thus comes within the umbrella of exclusion to which I have referred. In my judgment, adding the words "or acted negligently" in paragraph 29 does not alter the nature of the claim and convert this into a tortious claim (for which there is no immunity) from a contractual claim (for which there is immunity).
"Since the tort of negligence has been expanded to allow recovery for pure economic loss so that in cases of professional negligence there is concurrent liability in contract and for a tort, the question arises whether, where it would make a difference, the victim of the negligence may rely on the wider tortious test of reasonable foreseeability and ignore the stricter and more limiting contractual test of contemplation of the parties. It is thought that there is much to be said for not allowing this to be done. Where the claim for a tort is in the context of a contractual relationship, the parties are not strangers, as most tortfeasor's and tort victims are, and they should be bound by what they have brought to their contractual relationship in terms of what risks have been communicated by the one and undertaken by the other."
An earlier version of this passage, contained in an earlier edition of the work, was approved by the Court of Appeal in Wellesley Partners LLP v Withers LLP  Ch 529 at paragraph 76. Thus where, as here, the parties have a relationship which is non-contractual because they have not intended to create legal relations and the relationship they have is non-justiciable, that immunity from suit should extend to claims made arising from that relationship, even if there is a concurrent duty in tort.
"(i) subject to sections 192 and 193, the provisions of this Act to which this section applies have affect in relation to Crown employment and persons in Crown employment as they have affect in relation to other employment and other employees and workers."
However, section 192 provides specific provision in relation to the armed forces stating:
"i) Section 191
(a) Applies to service as a member of the naval, military or air forces of the Crown but subject to the following provisions of this section … "
Specific provisions are then made in relation to members of the armed forces so that no application can be made to an employment tribunal unless the serviceman has first made a Service Complaint pursuant to the provisions of part 14 of the Armed Forces Act 2006. This is a statutory example of the maxim "the exception proves the rule": the fact that a specific exception is made for members of the armed forces, and such an exception is deemed necessary by parliament, proves the general rule that, without the exception, there can be no application of the Employment Rights Act because a serviceman is not an employee.
"3. Until 12 June 2013 Captain Wildbur was a full-time commissioned officer in the British army. He was on a short-service commission but had been provisionally been accepted for a long-term IRC (a regular commission) in substitution. The IRC is an intermediate step to a full regular commission which attracts a pension. Around two-thirds of those on an IRC convert to a RC. The claimant was highly likely it was thought to obtain promotion to Major and it was asserted on his behalf in his grounds that he had a reasonable prospect thereafter of securing an appointment as Lieutenant Colonel.
4. Under regulations made in 2011, required to adjust the size of the army, some officers had to be selected for compulsory redundancy. The defendant was required by the government to ensure that the process of selection was fair, logical and based on clear published criteria. The claimant, as it happened, did not fall within the criteria, but because of errors on the part of the defendant was erroneously thought to do so and was regarded as eligible for – and therefore selected for – redundancy. In short it was held by the Service Complaint Panel (SCP) some two and half years after the date of his dismissal from the service as redundant that he had been wrongfully dismissed from the armed services."
The decision of the SCP was to offer the applicant reinstatement to the army with appropriate restoration of pay and benefits but the applicant had no wish to re-join the army in the circumstances in which he found himself and complained that the decision was irrational and unlawful. As Langstaff J stated:
"13. My task is to determine if the decision which the panel reached is unlawful. It would be so in these circumstances: if the panel had misconstrued the statute so as to misapply, or, if properly construing and applying the statute it had reached a decision which was Wednesbury unreasonable, which, for these purposes, I take as meaning it took into account a factor which it should not have taken into account or failed to take into account one which it was obliged to; or reached a decision which no reasonable panel in its position could have reached: in other words, a perverse decision, one which, as it has been described in other cases, flies in the face of reality. "