Carter & Anor, R (On the Application Of) v Chelmsford Crown Court

The limited appeal mechanism under regulation H5(1) of the Police Pensions Regulations 1987 concerns present entitlement to an award as of right, specified medical-treatment decisions, or forfeiture. It does not extend to a contingent claim which may arise only if future events occur. Such a claim should ordinarily be brought as an ordinary claim for declaratory relief under CPR Part 7 or Part 8. Judicial review is inappropriate where that clear alternative remedy is available. Where proceedings have been brought before the Crown Court without jurisdiction, the Divisional Court cannot remit them as an appeal, but may make practical directions to enable the substantive claim to proceed in the appropriate forum.

Mr and Mrs Carter challenged the operation of the police pension scheme, under which Mrs Carter would not receive a widow’s pension if her husband, a retired police officer, predeceased her because their marriage took place after his retirement.

They brought proceedings in the Crown Court under regulation H5(1) of the Police Pensions Regulations 1987, arguing that regulation C5(3) should be read down or disapplied to comply with Convention rights and the EU Framework Directive. The Crown Court declined to determine those issues and refused to state a case. The central issue was whether Mrs Carter’s contingent claim fell within the Crown Court’s statutory appeal jurisdiction.

1. The claim was not a properly constituted H5(1) appeal. Mr Carter had no claim: the Police Pension Authority had admitted his pension entitlement as of right. Mrs Carter’s claim was contingent, since it would arise only if her husband predeceased her. It was not a present entitlement to an award.
2. Regulation H5(1) was deliberately restrictive. It covered refusal to admit a claim to an award as of right, refusal to admit a claim to a larger award, specified medical-treatment decisions and forfeiture. Mrs Carter’s claim fell within none of those categories. The related provision, regulation H1(1), likewise concerned whether a person was presently entitled to an award. The detailed provisions concerning widows reinforced that a person who was not yet a widow was outside the relevant scheme of appeal.
3. The H5 procedure was intended to provide a quick and straightforward mechanism for present entitlement and calculation issues. It was not designed for contingent claims or the Convention and discrimination issues raised in this case.
4. The appropriate remedy was an ordinary claim for declaratory relief under CPR Part 7 or Part 8. The claim could be formulated before the contingent entitlement crystallised. Judicial review was inappropriate because a clear alternative remedy was available.
5. The court therefore could not remit the purported appeal to the Crown Court. To avoid unnecessary duplication, the proceedings were transferred to a single Queen’s Bench Division judge and were to be treated as a Part 8 claim. The Crown Court’s factual findings were to be binding. Directions were given for skeleton arguments, allocation of responsibility between Essex Police and the Secretary of State, preparation and a two-day hearing. No order was made on the live Crown Court costs issues.

• Chelmsford Crown Court: declined to determine the Convention and discrimination issues, holding that regulation H5 was limited to claims to receive an award as of right. It refused to state a case.
• High Court (Administrative Court): treated the Crown Court judgment as the case stated, held that the H5(1) appeal had never been properly constituted, declined to remit it, and transferred the substantive matter for determination as a Part 8 claim.