CHALLENGE TO JURISDICTION OF THE COURT WAS AN APPROPRIATE STEP IN AN ACTION BROUGHT BY A “REDUNDANT” SOLDIER
There is a procedural issue considered in the judgment of Mr Justice Martin Spencer in Malone v Ministry of Defence  EWHC 2958 (QB). The judge held that it was appropriate for the Ministry of Defence, facing a claim in contract brought by a former soldier, to dispute the jurisdiction of the court.
The claimant had been in the army and made redundant. He brought an action for breach of contract alleging that the redundancy was unfair. The defendant applied for an order that the court had no jurisdiction to hear the claim. The judge decided that the court had no jurisdiction given the absence of any contractual relationship between the Crown and the armed forces.
WAS THE APPLICATION IN RELATION TO JURISDICTION THE APPROPRIATE COURSE OF ACTION?
The judge held that the court had no jurisdiction, further the application that the defendant had made was an appropriate one.
In the circumstances, in my judgment this claim made by Mr Malone against the MOD must inevitably fail. Mr Barnes has raised the question whether it was appropriate for the MOD to challenge the jurisdiction of the court or whether the appropriate remedy was to seek summary judgment or to strike out the claim as disclosing no reasonable cause of action. This application in fact encompasses all these grounds in the alternative and, in a sense, it does not matter from the point of view of the parties upon which ground the claim is dismissed. However, in my view, the decision of the MOD to challenge the jurisdiction of the court was appropriate: a challenge to jurisdiction seeks to emphasise the very special and unusual position of members of the armed forces whereby their relationship with the Crown is non-justiciable unless specifically provided for by statute and whereby, as was stated in Quinn, there is no intention to create legal relations. In my judgment, it is appropriate, looking at the claim and remedy sought by the claimant in this case, for the court to decline jurisdiction because of the non-justiciable relationship between the parties. If, though, I am wrong about that, then I take the view that the claim should be struck out as an abuse of the process of the court on the basis that it is in reality a claim for damages for breach of contract when there is no contract and it is an abuse of the court’s process to “repackage” the claim, as Mr Johnston put it, as a claim in tort and thereby seek to avoid the consequences of the true relationship between these parties.