Court email proves pre-service. Fourie is clear. Waiver risk moderate.
Transfer from High Court to County Court on 13 Aug 2024 was made before service was effected (court email confirming service 28 Aug 2024). A court cannot transfer proceedings over which it has not yet acquired jurisdiction. The court itself acknowledged the defect by issuing a second transfer order (Deputy Master Dovar, 3 Sep 2024) and resealing the claim under CPR 17.1(1). If the first transfer was valid, no second transfer would have been necessary. The second transfer is a derivative nullity founded on the void first transfer. The Applicant filed a set-aside application against the first transfer which was never determined. Master Clark also split the single claimant into two separate parties, enabling DDJ Wood to strike out the second claimant through a void sealed order (MHCM Day 9).
Fourie v Le Roux [2007] UKHL 1
What the opponent will argue, and why they are wrong.
Transfer was administrative, not jurisdictional. Court had jurisdiction from issue, not service.
Fourie v Le Roux [2007] UKHL 1: court should not exercise coercive jurisdiction before substantive proceedings properly before it. Transfer on 13.08.2024; court email 28.08.2024 confirms 'service has not yet been effected'. Transfer was 15 days pre-service. Anisminic: jurisdictional error = nullity.
Applicant waived the jurisdictional defect by participating in County Court proceedings.
Filed set-aside application immediately (CE-File deleted it). Told anything filed in High Court would be 'struck out'. Participation under protest/impossibility is not waiver. Phillips v Symes: void orders remain void regardless of participation. The Catch-22 created by HMCTS (cannot challenge in HC, application deleted in CC) negates any waiver argument.
Transfer date and service confirmation date are both documented. Transfer preceded service by 15 days.
Fallback: Attack via Defence being 27 days late (Billington) rather than jurisdictional void.
Independence: Partially dependent on other grounds succeeding.
| Date | Judge | Type | Status |
|---|---|---|---|
| 13 August 2024 | Master Clark | First Transfer Order | VOID |
| 3 September 2024 | Deputy Master Dovar | Second Transfer Order | VOID |
| 4 September 2024 | Unknown (Sealing Officer) | Sealing of Claim Form (Post-Transfer) | VOID |