CA-2025-000379 - [2025] EWCA Civ 1357

For the reasons given above, I would allow the appeal and hold that the ET had no jurisdiction to entertain the detriment claim as presented.

A question then arises as to the rule under which we should give effect to that conclusion. As we have seen, Swift J treated the application which he permitted to be made before him as being under rule 27 or rule 37: both had been referred to in Clark. Rule 37 does not explicitly refer to lack of jurisdiction as a ground for striking-out, though it could if necessary, albeit slightly clumsily, be accommodated within the language of either paragraph (1) (a) (since a claim which the ET has no jurisdiction to determine can have no prospect of success) or paragraph (1) (c) (since the Claimant did not comply with the Rules). By contrast, rule 27 does refer in terms to dismissal for lack of jurisdiction, but the difficulty is that it does not purport to give a general power to dismiss on that basis and is only concerned with prescribing the particular procedure summarised at para. 32 above. In the end, the question is not of fundamental importance, since it is axiomatic that the ET must by one means or another decline to entertain a claim in respect of which it has no jurisdiction. But I believe that rule 27 is the more natural vehicle: although the issue has not arisen in precisely the way there contemplated, the essence of its procedural requirements have been followed and any departures can be treated as waived under rule 6.