Gurkhas lose pensions challenge

The British Gurkha Welfare Society has failed in its second bid to boost the pensions of Gurkhas who retired before the brigade was based in the UK.

Earlier this year, the High Court rejected the society's arguments at judicial review that the MoD should increase the pension entitlement of Gurkha soldiers for periods of service before July 1997, when the Gurkhas were based in Hong Kong, to the level they received following their transfer to the UK.

The society argued that failure to do this amounted to discrimination on the grounds of age and nationality under article 14 of the ECHR.

However, Mr Justice Burnett told the High Court that 'discrimination on grounds of nationality is the founding principle, indeed the raison d'etre, of the Gurkha Brigade' (see solicitorsjournal.com 19 January 2010).

The Court of Appeal had already rejected a challenge to the Gurkhas terms and conditions, including pensions, in Purja v Ministry of Defence [2003] EWCA Civ 1345.

This week the Court of Appeal agreed with Burnett J at first instance that the court was bound by Purja, which was correctly decided.

Delivering the leading judgment in R (on the application of the British Gurkha Welfare Society) v Ministry of Defence [2010] EWCA Civ 1098, Lord Justice Maurice Kay said that counsel for the society had argued that it was wrong for Burnett J to 'trade off' benefits and detriment between Gurkhas and British soldiers, such as the lower pension and retirement age for Gurkhas against the longer qualifying service of other soldiers.

'I do not accept this criticism of the judge's approach, which reflected that of the Court of Appeal in Purja,' he said.

'The approach is simply a means of identifying differences between allegedly comparable situations and is a permissible consideration of matters relevant to justification. The pejorative term 'trade off' tends to conceal that.'

Maurice Kay LJ dismissed the application for judicial review. Lord Justice Longmore and Lady Justice Black agreed.