Bass v Ministry of Defence

CPR r 30.3(3) does not require transfer of County Court proceedings merely because national-security material is the subject of a public interest immunity claim. Mandatory transfer arises when a closed material procedure under section 6 of the Justice and Security Act 2013 is contemplated. The County Court may hear and determine a national-security PII application. Transfer may nevertheless be ordered discretionally where the PII issue is unusually heavy, complex or sensitive. A High Court application under section 41 of the County Courts Act 1984 should not be used to replicate a refused County Court transfer application. Absent changed circumstances or new material, the High Court should show strong restraint and interfere only where the County Court’s case-management decision is clearly and obviously wrong.

Two former soldiers brought claims against the Ministry of Defence concerning Q fever and chronic fatigue syndrome allegedly contracted during service in Afghanistan. The claims, issued in the County Court, involved substantial damages, disputed liability, combat immunity, health and safety regulations, and anticipated challenges to national-security redactions in public interest immunity certificates.

Mr Taylor had previously applied under section 42 of the County Courts Act 1984 to transfer his claim to the High Court. A District Judge refused the application, and an appeal was stayed pending the section 41 applications. Mr Taylor and Mr Bass then applied directly to the High Court. The central issues were whether the applications were abusive or should be refused as impermissible replications, and whether CPR r 30.3(3) made transfer mandatory because national-security material might be involved.

1. The applications were refused. Mr Taylor’s section 41 application substantially replicated the application already refused by the County Court. Although the High Court had jurisdiction under section 41 and the application was not technically an abuse of process, comity between courts and the proper allocation of case-management functions required considerable restraint. In the absence of changed circumstances, new evidence or an unknown material factor, the High Court should interfere only if the County Court’s decision was clearly and obviously wrong. The discretionary transfer factors in CPR r 30.3(2), including convenience, value, complexity and judicial expertise, were matters best assessed by the court seised of the proceedings.
2. CPR r 30.3(3) was construed restrictively. Its legislative context showed that it was introduced as part of the procedural arrangements for closed material procedures under Part 2 of the Justice and Security Act 2013. Since section 6 of that Act permits a closed material procedure only in proceedings before specified senior courts, the rule requires transfer when such a procedure is anticipated.
3. The rule did not require transfer merely because a party asserted PII on national-security grounds, or because a PII application might be challenged. CPR r 82.2(2) prevented disclosure in a manner damaging to national security, so an unsuccessful PII challenge would not itself require disclosure of the sensitive material. The County Court therefore remained able to hear and determine a national-security PII application.
4. Discretionary transfer under CPR r 30.2 remained available where a PII application was particularly heavy and complex or involved unusually sensitive national-security issues. Such cases would be rare. The material before the court did not justify transfer: the proposed redactions were limited, the PII applications were suitable for the County Court, and the Ministry did not seek transfer. Mr Bass’s application stood or fell with Mr Taylor’s.

not stated in the judgment.