Laurence Westgaph v National Museums Liverpool

Retrospective validation of defective service under CPR 6.15(2) requires a good reason assessed in all the circumstances. Knowledge of the claim’s contents is important but does not, by itself, justify validation. Relevant considerations include the claimant’s steps to comply, the defendant’s knowledge and the prejudice caused, including loss of a limitation defence.

Judicial review requires both a public body or body performing public functions and a challenge based on public law. Private dealings, contractual or voluntary arrangements, and private law claims do not become public law merely because the defendant is publicly funded or has public-facing policies. The Public Sector Equality Duty requires substantive due regard, but not an equality impact assessment for every individual decision. The no-substantial-difference question may be assessed on the assumption that the decision will be taken again lawfully.

The claimant, a historian and public speaker, challenged decisions and statements by National Museums Liverpool concerning an investigation, his suspension from voluntary activities and exclusion from stakeholder groups. He alleged illegality, procedural unfairness, irrationality, breaches of the Public Sector Equality Duty, data protection legislation and the Rehabilitation of Offenders Act 1974.

The claim form was issued on 13 February 2025. It was sent by email within time, but was hand-served one day after the expiry of the service period. The claimant applied retrospectively to validate service under CPR 6.15(2). The court also considered whether the proposed claims were amenable to judicial review, reasonably arguable and affected by the statutory no-substantial-difference test.

1. Service. The application under CPR 6.15(2) was refused. Although NML’s solicitors knew the contents of the claim form before the service period expired, the claimant had not taken reasonable steps to serve it in accordance with the rules. Applying the principles in Barton v Wright Hassall LLP [2018] UKSC 12 and R. (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, the decisive consideration was the prejudice arising from validation. NML would face substantial cost and procedural prejudice in defending numerous unclear and evolving challenges, while the claimant’s prospective benefit from judicial review was limited.
2. Amenability. NML was arguably a public body, but the challenged dealings concerned private contractual or voluntary relationships and private law matters. Public funding, governmental appointment of trustees, public-facing policies and the public impact of decisions did not convert those dealings into the exercise of public functions. Judicial review could not fill the absence of a private law cause of action.
3. PSED. Under sections 149(2) and 150(5) of the Equality Act 2010, any duty depended on whether the particular acts were functions of a public nature. The court held that this was not reasonably arguable on the facts. In any event, the duty did not require a formal equality impact assessment or formulaic process for every individual decision. The relevant question was substantive due regard.
4. No substantial difference. Assuming that due regard had not been given, the question under section 31(3C)–(3E) of the Senior Courts Act 1981 was whether the decision would inevitably have been materially different on being retaken lawfully. It was highly likely that the decision to suspend the claimant while investigating reported concerns would have been the same. Permission was therefore refused.
5. The claim could not proceed. Costs were reserved for determination on the papers, and the claimant was given 21 days to seek permission to appeal.

The claim was determined at first instance in the Administrative Court. An earlier order by Mr CMG Ockelton, sitting as a High Court Judge, directed that permission and outstanding applications be determined at an oral hearing. The present court refused validation of service and refused permission to bring the claim.