Practice and procedure – Claim form – Service – Appellants serving claim out of time and seeking order that claim validly served – Respondent applying to strike out claim – District judge granting application – Circuit judge upholding decision – Appellants appealing – Whether respondent’s failure to indicate on acknowledgement of service form intention to challenge court’s jurisdiction invalidating strike out application – Appeal dismissed
The appellants entered into a commercial contract with the respondent. They alleged non-payment of a grant and under-payment of rental reimbursement payments pursuant to the statutory regime. The appellants failed to serve a sealed claim form within four months of issue as required by CPR 7.5(1). When a sealed claim form was finally served, the respondent filed an acknowledgment of service. On the acknowledgment of service form, the respondent ticked the box stating that it intended to defend the claim but not the box stating that it intended to contest the court’s jurisdiction.
The appellants sought an order that the claim had been validly served either by rectification of the claim form under CPR 3.10, by permitting service under CPR 6.15 or by dispensing with the need for service under CPR 6.16; alternatively, they argued the time for service should be extended.
The respondent applied for the claim to be struck out for non-compliance with CPR 7.5. Relying on the Court of Appeal decision in Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806, the appellants argued the respondent’s application could not succeed because it was not an application under CPR part 11.
The district judge granted the respondent’s application to strike out the claim. On the appellants’ appeal, the circuit judge held that the application should have been brought under CPR part 11 but the failure to do so was an error which could be cured under CPR 3.10: [2022] EWHC 1636 (QB). The appellants brought a second appeal.
Held: The appeal was dismissed.
(1) The timely and lawful service of originating process was particularly important. Failure to comply with the rules about such service was to be treated with greater strictness than other procedural errors. In the present case, if the respondent’s solicitors had made their application expressly seeking a declaration under CPR 11(1) that the court has no jurisdiction to try the claim, there would have been very little that the appellants could have said in response: Barton v Wright Hassall LLP [2018] 1 WLR 1119 applied.
However, CPR 3.10 could not be used to override an express prohibition in another rule. An example of such an express prohibition was in CPR 7.6(3). If a claimant applied retrospectively for an order to extend the time for service of a claim form, the court might make such an order only if the remaining conditions laid down by the rule had been fulfilled. If they had not been fulfilled, CPR 3.10 was not available. However, that rule was not to be expanded into saying that CPR 3.10 could not be used to rectify any breach of the Civil Procedure Rules. Otherwise, the rule would be deprived of its utility. When CPR 3.10 was invoked, it presupposed that some error of procedure had been made: Vinos v Marks & Spencer plc [2001] 3 All ER 784 applied.
(2) If a defendant acknowledged service without making an application under CPR 11(1) for an order declaring that the court had no jurisdiction (or should not exercise its jurisdiction) to try the case, that was taken to be an acceptance of jurisdiction. The decision in Hoddinott was binding on the court and it had not been impliedly overruled by Barton. The judge was right to reject the argument, based on the use of the word “expired” in Barton, that there was an analogy between the expiry of a claim form and the death of a living creature. Plainly in some circumstances an expired claim form could be revived: see CPR 7.6(3).
However, the failure of the respondent’s solicitors, when completing the acknowledgment of service form, to tick the box indicating an intention to contest jurisdiction was not fatal to their application for relief. Even if the box had been ticked, an application would still have been required to be made within 14 days. CPR 11(1) did not say that a box on a form had to be ticked: it said that an application had to be made. A tick in the box was neither necessary nor sufficient as a basis for challenging jurisdiction.
(3) The critical question was whether the respondent’s application could, using CPR 3.10, be treated as having been made under CPR 11(1). Such rectification would not offend against the Vinos principle. CPR 11(1) did not contain clear mandatory wording equivalent to that laid down by CPR 7.6(3) that a retrospective extension of time might be granted “only if” certain conditions were fulfilled.
The failure to make express reference to CPR 11(1) was an error capable of rectification under CPR 3.10. The acknowledgment of service, the covering letter and the application to strike out supported by witness statements together made the respondent’s intentions clear. This was in substance an application to stop the case on the grounds that the appellants had failed to serve the claim form in time.
(4) In Steele v Mooney [2005] 1 WLR 2819, the Court of Appeal, distinguishing Vinos, held that the application for an extension of time was intended to be for service of the claim form as well as the particulars. The subsequent application for relief was not in substance an application to extend time for service of the claim form, but an application to correct the application for an extension of time which had been made within the time specified for service and which by mistake did not refer to the claim form. This case was much closer to Steele v Mooney than to Vinos or Hoddinott.
(5) The court was not impressed by the appellants’ argument that if their failure to comply with the rules was to be treated so strictly despite the serious consequences, the same procedural rigour should be applied to the respondent. That argument was contrary to the decision of the Supreme Court in Barton. Errors in issuing and serving originating process were in a class of their own.
Furthermore, the failure of the documents served to make express reference to CPR 11(1) was not a serious and significant transgression. It was, rather, just the sort of technical error for which CPR 3.10 was designed.
Timothy Trotman (instructed by Acklam Bond, Accrington) appeared for the appellants; Aidan Reay (instructed by Hill Dickinson) appeared for the respondent.
Eileen O’Grady, barrister
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