KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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THE OCCUPIERS OF SAMUEL GARSIDE HOUSE |
Claimants |
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- and - |
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(1) BELLWAY HOMES LIMITED (2) SHEPPARD ROBSON LIMITED |
Defendants |
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David Sawtell (instructed by Gateley LLP) for the Claimants
The Second Defendant did not appear
Hearing dates: 4 December 2025
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Crown Copyright ©
MASTER DAGNALL:
"(1) An order granting a retrospective extension to file an acknowledgment of service, specifically for and confined to the purpose of disputing the court's jurisdiction, by an application for a declaration under r.11(1) or relief from sanctions.
(2) an order declaring that (i) the court has no jurisdiction to try the claim, or (ii) will not exercise any jurisdiction which it may have, and that (iii) the court will set aside the service of the claim form and the particulars of claim"
i) should the first defendant be permitted to file an acknowledgement of service out of time and make a CPR part 11 jurisdiction challenge? Mr Calland, counsel for the first defendant, says that the answer to this should be "Yes" and that the granting of such permission would have the inevitable result that the CPR11 jurisdiction challenge would succeed and the claim would therefore be struck out or the claim form set aside in view of my conclusions set out in paragraph 144 of the previous judgement. Mr Sawtell, counsel for the claimant, says that I should refuse such permission and either (a) direct that there should simply be no acknowledgment of service or jurisdiction challenge but simply for a defence to be served or (b) give permission to file an acknowledgement of service out of time but on condition that there would be no CPR11 challenge
ii) should the claimant be permitted to file and serve particulars of claim out of time? Mr Calland says that the answer to this should be "No"; mainly because of the circumstances of the CPR11 challenge but also on discretionary grounds. He says that even if there were to be no CPR11 challenge the claim is effectively dead and cannot be proceeded with as a matter of law. Mr Sawtell says that the answer should be "Yes" and the permission granted
iii) if the claim survives whether additional claimants should be added and if so on what terms? There is only limited disagreement here between the parties as to this, being as to the particular terms of such an addition.
"14. In this regard, Frontera submitted, YA II did not dispute, and I accept, that, as was decided in Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm), [2005] 2 CLC 380, first judgment paragraphs 20-24, if there was no valid service, there will have been no obligation on the defendant to serve an Acknowledgment of Service, and no default in failing to do so, and a judgment in default entered in such circumstances must be set aside, subject only to the possible effect of an order retrospectively validating such service (an issue to which I come below).
17. I consider that Frontera is correct about this. It was by virtue of the order of 15 January 2020 that YA II had permission to serve the Claim Form out of the jurisdiction. The permission was, on its terms, limited to service at particular addresses. Service was not effected in accordance with the permission granted.
18. YA II sought to rely on CPR 6.40(3)(c), which provides:
"(3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served –
(c) by any other method permitted by the law of the country in which it is to be served."
YA II's argument was that if there was service by a method permitted by the relevant US law, though at an address different from that specified in the order of 15 January 2020, that would be good service in accordance with CPR 6.40(3)(c). I do not accept that submission. CPR 6.40(3)(c) is subject to any restrictions or limitations which may be imposed by the order. If a place for service has been specified, CPR 6.40(3)(c) does not allow service at another place. If YA II's argument were correct, then an order which had the "or elsewhere in…" wording, and one which did not, would have exactly the same effect, and those words would be unnecessary surplusage. To my mind that is not how the words of formal orders of the court should be understood.
43. For those reasons I do not consider that it has been shown on the balance of probabilities that there was valid service under the relevant US law.
56. Mr Lowenstein, however, also drew to my attention the authority of Dubai FinancialGroup LLC v National Private Air Transport Co (National Air Services) Ltd [2016] EWCA Civ 71. I gratefully acknowledge Mr Lowenstein's very proper professional conduct in this regard. In that case, the majority of the Court of Appeal held that, where there has not been valid service, the defendant has no obligation to acknowledge service, and a default judgment entered in those circumstances is one which can be set aside under CPR 13.2. As McCombe LJ put it at paragraph 41:
"If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all."
57. Further, the majority regarded there as being a clear requirement, under CPR 6.15(4)(c) for any order retrospectively validating service to specify the period for filing an acknowledgment of service. In that case, the order validating service had not done so, and judgment in default had been entered immediately. But it is clear that the majority considered that in any case in which there is a retrospective validation of service the court should at that point give the defendant a further period in which to acknowledge service. At paragraph 30 Treacy LJ said:
"In those circumstances where, ex hypothesi, a defendant cannot know that he has been validly served, to deprive him thereafter of any period during which he can acknowledge service in the usual way seems to me unfair and unjust. In effect it denies a defendant part of the due process involving the ability to contest a claim once the claimant has established, through a CPR 6.15(2) order, that the mechanism requiring him to respond if he is to contest the claim has been triggered."
58. The majority of the Court of Appeal held that what had been said in paragraph 43 of Kaki v National Private Air Transport Co was not applicable and not binding on the court, because Kaki did not deal with a default judgment and did not consider CPR 6.15(4).
59. I consider that I am bound by, and even if not should follow, the decision of the majority of the Court of Appeal in Dubai Financial Group. That requires that, having retrospectively validated service, I should set a time for the filing of an acknowledgment of service. It is implicit in CPR 6.15(4) that the period specified for filing an acknowledgment of service (or admission or defence as the case might be) should be after the date on which the order is made. CPR 6.15(4)(c) does not refer to a deemed date on which the acknowledgment of service should have occurred, and may be contrasted with CPR 6.15(4)(b), which refers to specification of the deemed date on which the claim form was served; and in referring to the period "for filing" it is using prospective language. This gives effect to the fact that it would, as the majority of the Court of Appeal in the Dubai Financial Group case said, be unfair and unjust for there to be no period after the defendant can know that there has been valid(ated) service in which he can enter an acknowledgment of service.
60. On that basis, the default judgment must be set aside under CPR 13.2, because it was entered at a point when the time for acknowledgment of service had not expired. I will set a time in which there should be acknowledgment of service, which will be 7 days from the date on which this judgment is handed down."
"27 It therefore follows that the method of service adopted in this case was not permitted by the law of Turkey within CPR 6.24(a). Even if it was permitted under Turkish law for service of domestic proceedings, it was not a method permitted for service of foreign proceedings. Indeed, it was a method expressly excluded by reason of the Turkish objection registered under the Hague Convention and could not therefore be within the scope of CPR 6.24(a). Nor was it a method of service designated by CPR 6.25(1) as appropriate where the claim form is to be served on a defendant in a country which is a party to the Hague Convention.
28. Accordingly, subject to the Claimant's applications under CPR 3.10, for the court to remedy errors in service and under CPR 6.9 to dispense with service, this judgment in default of acknowledgement of service must be set aside under CPR 13.2. I must therefore now consider these applications."
"58 Further, even if one took the view that CPR 6.9 could be applied retrospectively to cure defective service in a case such as this, its application would not have the effect of retrospectively imposing on the defendant a duty to acknowledge service. Ex hypothesi there never has been any service such as to engage that duty at the time when it would fail to be performed. It follows that there is no way in which the retrospective application of the rule can found a basis for obtaining judgment in default.
59. For these reasons, the defendant's application to set aside the judgment in default succeeds. The claimant's applications in respect of CPR 3.10 and CPR 6.9 are refused. The order is therefore that the judgment in default is set aside under CPR 13.2. It follows that no discretionary order under CPR 13.3, whether in the terms set out in paragraph 46 of the First Judgment or otherwise, is called for. The defendant is entitled as of right to an order under CPR 13.2. The claimant should be left to a method of service specified by the Hague Convention and to which Turkey has registered no objection."
i) It is simply a distinction without a difference that these cases concerned situations of no valid service at all, where here there was service in accordance with CPR procedures but outside the CPR 7.5(1) time limit
ii) That service is a unique process within the CPR which is of paramount importance as it is the means by which the court takes jurisdiction over a defendant; and therefore that process has to be a strict one such that service out of time is just as ineffective as service by an impermissible method; and so that a defendant can just do nothing in either of those circumstances without fear of a default judgement or any other judgement, unless and until the court makes some validation order or there is a statutory CPR11 or common law waiver.
"RULE 31—(1) The court has jurisdiction to entertain a claim in personam if, and only if, the defendant is served with process in England or abroad in the circumstances authorised by, and in the manner prescribed by, statute or statutory order.
11–004 Service of process. This Rule expresses the general principle that in England the foundation of the court's jurisdiction to entertain a claim in personam is service of process. Every action commences with the issue of a claim form.5 When process cannot legally be served upon a defendant, the court can exercise no jurisdiction over the defendant. In proceedings in personam the converse of this statement holds good, and whenever a defendant can be legally served with process, then the court, on service being effected, has jurisdiction to entertain the claim against that defendant. Hence in proceedings in personam the rules as to service de?ne the limits of the court's jurisdiction. The methods of service are laid down by the Civil Procedure Rules (''CPR''), and provision is made for service by an alternative method (previously called ''substituted service'') on individuals who are defendants where personal service cannot be effected.6"
"1. The appellant, a litigant in person, purported to serve the claim form in these proceedings on the defendant's solicitors by email, without obtaining any prior indication that they were prepared to accept service by that means. It is common ground that this was not good service. As a result, the claim form expired unserved on the following day. The question at issue on this appeal is whether the Court should exercise its power retrospectively to validate service. To date, the District Judge, the County Court judge and the Court of Appeal have declined to do so. If their order stands, the result will be that Mr Barton can proceed with his claim only by a fresh action. The present appeal has been conducted on the assumption that such an action would be statute-barred…
8. The Civil Procedure Rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is to be found in CPR 3.9, which confers a power to relieve a litigant from any "sanctions" imposed for failure to comply with a rule, practice direction or court order. These powers are conferred in wholly general terms, although there is a substantial body of case law on the manner in which they should be exercised: see, in particular, Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note)[2014] 1 WLR 3926 (CA), esp at para 40 (Lord Dyson MR and Vos LJ), Global Torch Ltd v Apex Global Management Ltd (No 2)[2014] 1 WLR 4495 (SC(E)). The short point to be made about them is that there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the courts. CPR rule 6.15 is rather different. It is directed specifically to the rules governing service of a claim form. They give rise to special considerations which do not necessarily apply to other formal documents or to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court's jurisdiction."
i) Hoddinott v Persimmon 2007 EWCA 1203 and the references within it which I cited in paragraphs 149-150 of the Previous Judgment:
"149. In paragraphs 21-25 of Hoddinott it was held that CPR11 was engaged in this context:
"21. Mr Exall submits that CPR 11 has no relevance in the present context. He says that no issue of "jurisdiction" arises here. He argues that the claimants are in difficulty not because the court does not have jurisdiction to determine the claim, but because they have failed to comply with the rules of court as to service. A defendant who seeks to set aside an order made without notice or to argue that the claim form was served out of time is not challenging the court's jurisdiction, but is merely applying the procedural rules. The court does have jurisdiction to deal with a claim even where the claim form is served out of time. For example, it has jurisdiction retrospectively to extend the time for service under CPR 7.6(3) and to make an order dispensing with service under CPR 6.9. Finally, Mr Exall draws attention to the definition of "jurisdiction" in CPR 2.3: it means "unless the context requires otherwise, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales".
22. In our judgment, CPR 11 is engaged in the present context. The definition of "jurisdiction" is not exhaustive. The word "jurisdiction" is used in two different senses in the CPR. One meaning is territorial jurisdiction. This is the sense in which the word is used in the definition in CPR 2.3 and in the provisions which govern service of the claim form out of the jurisdiction: see CPR 6.20 et seq.
23. But in CPR 11(1) the word does not denote territorial jurisdiction. Here it is a reference to the court's power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR 11(1)(a)) or that the court should not exercise its jurisdiction to try a claim (CPR 11(1)(b)). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment, CPR 11(1)(b) is engaged in such a case. It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namely CPR 7.5(2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim.
24. We would, therefore, hold that CPR 11 is engaged in the present context. This accords with what was said by Tugendhat J in Mason v First Leisure Corporation Plc [2003] EWHC 1814 (QB) para 11, HH Judge Havelock-Allan QC in The Burns-Anderson Independent Network Plc v Wheeler, (Bristol District Registry Mercantile List, unreported 28 January 2005) para 45 and Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, [2005] 1 WLR 2070 para 34 (although in this last case, it was common ground that CPR 11 was engaged)."
150. In paragraphs 26-29 of Hoddinott it was held that statutory waiver consequence followed if an acknowledgement of service was filed and no application made in time under CPR11 even if the defendant had applied to set aside an order extending time for service as the wording of CPR11 was clear:
"26. We doubt whether the Rule Committee addressed the problem that has arisen in this case. But in our view, the interpretation adopted by the district judge was not open to him. Subject to the point discussed at para 28 below, the language of CPR 11 is clear. Paragraph (1) permits a defendant to apply to the court for an order declaring that the court has no jurisdiction to try the claim or that the jurisdiction should not be exercised. Paragraph (2) provides that a defendant who wishes to make such an application "must first file an acknowledgment of service in accordance with Part 10" (emphasis added). Paragraph (4) provides that an application under CPR 11 must be made "within 14 days after filing an acknowledgement of service" (again, emphasis added). Paragraph (5) provides that if the defendant files an acknowledgement of service and does not make an application within the period specified in paragraph (4), "he is to be treated as having accepted that the court has jurisdiction".
27. In our judgment, the meaning of paragraph (5) is clear and unqualified. If the conditions stated in subparagraphs (a) and (b) are satisfied, then the defendant is treated as having accepted that "the court has jurisdiction to try the claim". The conditions include that the defendant does not make an application for an order pursuant to CPR 11(1) within 14 days after filing an acknowledgment of service. An application to set aside an order extending the time for service made before the filing of an acknowledgement of service is not an application under CPR 11(1) nor is it an application made within 14 days after the filing of the acknowledgment of service. The district judge (rightly) did not hold that the application to set aside the order extending time for service was an application under CPR 11(1). Rather, he said that the earlier application to set aside the order rendered it unnecessary to make an application under CPR 11(1). But in our judgment, there is no warrant for holding that, if an application is made before the filing of an acknowledgment of service to set aside an order extending the time for service, this has the effect of disapplying the requirement for an application under CPR 11(1). There is no such express disapplication, nor does one arise by necessary implication.
28. In our view, a defendant is fixed with the consequences stated in paragraph (5) if the two stated conditions are satisfied. At first sight, there is an apparent difficulty with the application of this approach to a case (such as the present) where the defendant wishes to argue that the court should not exercise its jurisdiction to try the claim, rather than to dispute the court's jurisdiction to try the claim. The distinction between the two categories of case seems to have been well understood by the draftsman. It is clearly drawn in paragraphs (1) and (6). But paragraph (3) provides that a defendant who files an acknowledgement of service does not, by doing so, lose any right he may have "to dispute the court's jurisdiction"; and paragraph (5) provides that if the two conditions in (a) and (b) are satisfied, the defendant is treated as having accepted that the court "has jurisdiction to try the claim". It may, therefore, be argued (although it was not argued before us) that paragraphs (3) and (5) refer to paragraph (1)(a) but not paragraph (1)(b). We would reject such an argument. CPR 11 must be read as a whole. It is clear that both paragraphs (2) and (4) are referring to applications made under paragraph (1)(a) and (1)(b). Further, paragraph (5) provides that if the defendant does not make "such an application" (ie an application under paragraph (1)(a) or (b)), then the consequences will be as stated. Paragraph (5) cannot mean that, if a defendant does not make an application under paragraph (1)(b), he will be treated as having accepted that the court has jurisdiction to try the claim. It must mean that, if a defendant does not make an application under paragraph (1)(b), he will be treated as having accepted that the court should exercise its jurisdiction to try the claim. In our judgment, the reference to disputing the court's jurisdiction in paragraph (3) and accepting that the court has jurisdiction in paragraph (5) encompasses both limbs of paragraph (1). The reference to the court's jurisdiction is shorthand for both the court's jurisdiction to try the claim and the court's exercise of its jurisdiction to try the claim.
29. It follows that, since both of the conditions stated in paragraph (5) were satisfied in this case, the defendant is treated as having accepted that the court should exercise its jurisdiction to try the claim, notwithstanding the late service of the claim form. The effect of paragraph (5) was that he was to be treated as having abandoned its application to set aside the order extending the time for service. This conclusion is reinforced by the fact that in this case the defendant indicated on the acknowledgement of service that it did not intend to contest jurisdiction and did intend to defend the claim."
Mr Sawtell relies in particular on paragraph 23 and the Court of Appeal's potentially holding that service of a Claim Form out of time does not deprive the court of jurisdiction.
ii) Pitalia v NHS 2023 EWCA Civ 657, that being a late service case, cited in paragraph 151 of the Previous Judgment:
"151 This analysis was affirmed by the Court of Appeal in Pitalia where it was also recognised that a defendant could seek to avoid the error of having failed to make a CPR11 application by making an application and seeking an extension of time (CPR3.1) or a CPR waiver (CPR3.10) of the error even though this would tend to involve a need to obtain relief from sanctions (CPR3.9 and Denton). In Pitalia an application had been made in time but was defective in form. At paragraphs 32 to 38 it was said:
"32. The following principles emerge from the authorities in this area:
(i) Barton v Wright Hassall LLP makes clear the particular importance attached by the Supreme Court to the timely and lawful service of originating process. Failure to comply with the Rules about such service is to be treated with greater strictness than other procedural errors. In the present case, if the Respondent's solicitors had made their application of 24 January 2020 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
(ii) On the other hand, the principle established in Vinos and followed in cases such as Ideal Shopping is that CPR 3.10 cannot be used to override an express prohibition in another Rule. An example of such an express prohibition is in CPR 7.6(3). If a claimant applies retrospectively for an order to extend the time for service of a claim form the court may make such an order only if the remaining conditions laid down by the rule have been fulfilled. If they have not been fulfilled then Rule 3.10 is simply not available. But the Vinos principle must not be expanded into saying that CPR 3.10 cannot be used to rectify any breach of the CPR. Otherwise the Rule would be deprived of its utility. When CPR 3.10 is invoked it presupposes that some error of procedure has been made. Without it civil litigation would be even more beset by technicalities than it is already.
(iii) There is a valid distinction between making an application which contains an error, and failing to make a necessary application at all. Steele v Mooney [2005] 1 WLR 2819 is a useful illustration. In that case the claimants sought the defendants' consent to a draft order extending time for service of the Particulars of Claim. That consent was forthcoming, but the extension of time was useless since the claimants had omitted to refer to the claim form. This court, distinguishing Vinos, held that the application for an extension of time was clearly 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.
33. Hoddinott lays down that if a Defendant acknowledges service without making an application under CPR 11(1) for an order declaring that the court has no jurisdiction (or should not exercise its jurisdiction) to try the case, this is taken to be an acceptance of jurisdiction. Whatever one might think of Hoddinott, the decision is binding on us, and like the judge I do not consider that it has been impliedly overruled by Barton. The judge was also right to reject the argument, based on the use of the word "expired" in Barton, that there is an analogy between the expiry of a claim form and the death of a living creature. Plainly in some circumstances an expired claim form can be revived: see CPR 7.6(3).
34. I agree with the judge that the failure of the Defendant's solicitors, when completing the acknowledgment of service form, to tick the box indicating an intention to contest jurisdiction is 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) does not say that a box on a form must be ticked: it says that an application must be made. As the judge put it, a tick in the box is neither necessary nor sufficient as a basis for challenging jurisdiction.
35. The critical question, therefore, is whether the Defendant's application of 24 January 2020 can, by the use of CPR 3.10, be treated as having been made under CPR 11(1). I do not accept Mr Trotman's argument that such rectification would offend against the Vinos principle. CPR 11(1) does not contain clear mandatory wording equivalent to that laid down by CPR 7.6 (3) that a retrospective extension of time may be granted "only if" certain conditions are fulfilled.
36. The failure to make express reference to CPR 11(1) in the letter of 21 January 2020 or the application of 24 January 2020 was in my view an error capable of rectification under CPR 3.10. The three documents - the acknowledgment of service, the covering letter and the application to strike out supported by witness statements – together made the Defendant's intentions clear. This was in substance an application to stop the case on the grounds that the Claimants had failed to serve the claim form in time. The case is much closer to Steele v Mooney than to Vinos or Hoddinott.
37. I am not impressed by the argument on behalf of the Appellants that if their failure to comply with the rules is to be treated so strictly despite the serious consequences, the same procedural rigour should be applied to the Respondent. That argument is contrary to the decision of the Supreme Court in Barton. Errors in issuing and serving originating process are in a class of their own.
38.I would also reject the Appellants' alternative argument based on Denton v TH White Ltd. I do not regard the failure of the documents served on 21 and 24 January 2020 to make express reference to CPR 11(1) as a serious and significant transgression. It was, rather, just the sort of technical error for which CPR 3.10 was designed."
Mr Sawtell relies in particular on paragraph 33 and its reference to an "expired claim form" being capable of being "revived".
ii) R (Koro) v CLCC 2024 EWCA 94, that being a case where it was argued that an attempt at service had been invalid, cited in paragraphs 153-155 of the Previous Judgment, although I only cite paragraphs 154-155 here:
"In paragraphs 64-70, the Court of Appeal said:
"Relevant principles
Defective service and its consequences
64. It was wrong of Ms Longson to submit and wrong of HHJ Baucher to accept that defective service means that proceedings do not exist. Proceedings that have been properly issued and are properly constituted exist whether or not they have been properly served. They do not cease to exist either because they are not served in time or have been served defectively. We consider this to be axiomatic.
65. The procedure for disputing the Court's jurisdiction is laid down by CPR Part 11. For present purposes, the most relevant provisions of CPR Part 11 are CPR 11 (1)-(4) which should be well known:
[CPR11 was then set out]
66. In Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203 at [23], the Court of Appeal held that the word "jurisdiction" in CPR Part 11 does not denote territorial jurisdiction but is a reference to the court's power or authority to try a claim:
"But in CPR r 11(1) the word does not denote territorial jurisdiction. Here it is a reference to the court's power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR r 11(1)(a)) or that the court should not exercise its jurisdiction to try a claim: CPR r 11(1)(b). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment, CPR r 11(1)(b) is engaged in such a case. It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namely CPR r 7.5(2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim. "
67. In Caine v Advertiser and Times Ltd and Ors [2019] EWHC 39 (QB) Dingemans J held that Hoddinott was binding authority for the proposition that an application that the court should not exercise its jurisdiction to try a claim must be made by CPR Part 11. Subsequently, Nugee LJ sitting in the Intellectual Property List of the Patents Court expressed a degree of uncertainty about the breadth of the Hoddinott principle in a case where a defendant had not served an acknowledgement of service and, as Nugee LJ found, there was a separate route provided by CPR r.7.7(3).
68. Given the breadth of the terms of CPR Part 11 and the absence of any alternative route elsewhere in the CPR which the CPS could have adopted or did adopt, we would hold that CPR Part 11 provides the procedure for disputing the Court's jurisdiction in a case such as this. Accordingly, if the CPS wanted to assert defective service, it should have followed that procedure, served an Acknowledgment of Service and made an application pursuant to CPR Part 11 within 14 days thereafter.
69. Even if we were to be wrong and there were to be some other route by which the CPS could have or could now raise the assertion of defective service, it would not be safe to speculate about what the outcome of such an application would be. It is not to be assumed (and could not be assumed by HHJ Baucher or the Deputy Judge when considering whether to give permission in these proceedings) that the end result would be that the Court would decline to exercise jurisdiction. Many different considerations might arise of which three of the most obvious are the nature of the defect in service (as to which see [7.iii)] above), the promptness (or otherwise) with which the point was taken by the CPS, and whether the CPS had waived the defective service. As Ms Milligan fairly and correctly pointed out, on any such application (whenever and however made) the Court would have a range of case management options from which to select the most appropriate, including (a) retrospectively dispensing with service, (b) extending time for service of an amended Claim Form to cure the defect or (c) making a retrospective or prospective order under CPR 6.15. This is not intended to be an exhaustive catalogue of the Court's available powers in an appropriate case."
155. The Court of Appeal then set a procedural course for enabling the matter to be resolved. At paragraph 88 they made clear that they were not deciding as to what should happen at any full hearing of whatever turned out to be the various applications in the case."
Mr Sawtell relies in particular upon paragraphs 68 and 69, and the emphasis in paragraph 68 that a challenge to defective service has to be made by a CPR Part 11 application.
"33. One of the submissions made was that the court could not deal with the claim at the hearing at all , because the jurisdiction had been challenged in the acknowledgments of service of the first, third and sixth defendants, filed on 6 December 2021, and, under CPR Part11, those defendants have 14 days after filing such acknowledgments to make their application to contest jurisdiction. So nothing could happen until the challenge was disposed of, some time after 20 December 2021. The first point to make in dealing with that submission is that it can apply only so far as concerns the first, third and sixth defendants. The second, fourth and fifth defendants have intimated no such challenge to jurisdiction, and the disposal hearing in relation to the claims against them cannot be prevented from going ahead on that basis. I turn therefore to consider the argument made from the point of view of the first, third and sixth defendants…
38. My conclusion is supported by the decision of Popplewell J (as he then was) in Taylor v Giovani Developers Ltd [2015] EWHC 328 (Comm) , another case on a jurisdictional challenge where the acknowledgment of service had been filed out of time. The judge said:
"14. The first question which arises is whether the First Defendant can apply for an extension of time of nine days within which to mount the jurisdiction challenge without also seeking an extension of time for entering an acknowledgment of service. Rule 11(2) provides:
'A defendant who wishes to make such an application [to dispute the court's jurisdiction or argue that the court should not exercise its jurisdiction] must first file an acknowledgment of service in accordance with Part 10.'
15. On behalf of the First Defendant, Mr. Harding argued that an acknowledgment of service which complied with the formalities of Part 10 satisfied Rule 11(2) , whether or not it had been served timeously. On behalf of the Claimants, Mr. Davies submitted that in order to qualify under Rule 11(2) , an acknowledgment of service must comply in all respects with Part 10, and an acknowledgment of service which does not comply with the time provisions set out in Part 10 is not an acknowledgment of service in accordance with Part 10.
16. The Claimants' submissions are to be preferred on this question. The wording of Rule 11(2) is clear. The acknowledgment of service must be "in accordance with Part 10". There is no reason to treat that as requiring compliance with only some parts of Part 10 and not others.
17. If an acknowledgment of service is not served within time, then there must be some means by which a Claimant can have that acknowledgment of service treated as ineffective unless the Court grants an extension of time. The effect of the submissions advanced on behalf of the First Defendant by Mr. Harding was that if a defendant entered an acknowledgment of service, albeit out of time, that was sufficient to trigger the right to defend the claim, the right to challenge jurisdiction and the right to resist a judgment in default of acknowledgment of service. He was unable to point to any provision of the Rules under which a Claimant would be entitled to have the acknowledgment of service set aside for being out of time. That seems to me to point clearly towards a need on the part of the defendant to seek an extension of time if the acknowledgment of service is to be treated as effective for its main purposes, which are to enable the claim to be defended or to enable a challenge to jurisdiction to be advanced, and to prevent judgment being entered in default of acknowledgment of service.
18. I am fortified in that analysis by the judgment of Flaux J in Talos Capital Ltd. & Ors. v. JSC Investment Holdings XIV Ltd. [2014] EWHC 3977 (Comm) in which he had to consider an application for an extension of time both for acknowledgment of service and for time in which to mount a Part 11 jurisdiction challenge, in circumstances which are analogous to the present case. He treated an application for extension of time in relation to the acknowledgment of service as being necessary because otherwise the acknowledgment of service would be treated as a nullity and would be capable of being set aside as such: see in particular paras. 30, 33 and 44 of that judgment."
39. For these reasons, in my judgment, the argument fails."
"30. Although Collyer Bristow have been instructed since 3rd October, and although Mr. Tolley told me at the hearing on 31st October that his clients intended to challenge the jurisdiction and seek to set aside the proceedings against them, no acknowledgement of service was served by the second defendants until 12th November, that acknowledgement of service being the prerequisite of any challenge to the jurisdiction under CPR Part 11 . Accordingly, that acknowledgement of service was filed 75 days late. The time for acknowledgement of service having expired on 29th August, the application under Part 11 , insofar as it was made in the Commercial Court, should have been filed 28 days later, by 26th September.
31. The first question I have to consider is whether to give the second defendant permission to serve the acknowledgement of service out of time and to grant the necessary extension. In support of his application, Mr. Tolley submits that this is not a case where the second defendant is seeking relief against sanctions under CPR 3.9 . He says the court is simply exercising its discretion under CPR 3.1(2)(a) so that the principles established in Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 1 WLR 795 , as clarified in Denton v TH White Limited [2014] EWCA Civ 906, [2014] 1 WLR 3926 , simply do not apply. In support of that proposition he relies upon the judgment of Moore-Bick LJ in the recent Court of Appeal decision of Altomart v Salford Estates (No.2) Ltd [2014] EWCA Civ 1408 That was a case where a respondent was seeking an extension of time to file a respondent's notice in the Court of Appeal under CPR 52.5(2)(b) . Mr. Tolley relied upon para.10 of that judgment, where Moore-Bick LJ said:
"In my view it is clear from the language of rule 3.8 that it is concerned with a sanction imposed by the very rule, practice direction or order of which the applicant is in breach, hence the use of the words "imposed by the rule, practice direction or court order." In such cases the consequences of default are spelled out; a classic example is an "unless" order. Rule 3.9 does not repeat the words "by the rule, practice direction or court order", but Rule 3.8 provides the context in which rule 3.9 has to be read and in my view it is also directed to sanctions in the sense of consequences imposed by the rule, practice direction or order of which the applicant is in breach. Most rules, practice directions and orders, however, do not provide specific sanctions for their breach, leaving it to the court to decide what, if any, consequences should follow. In my view rule 3.9 does not, therefore, apply to such cases and an application for an extension of time is not one that falls within the scope of rule 3.9 , either expressly or by analogy. Such applications are governed by rule 3.2(1)(a) ."
32. However, as Mr. Tolley was essentially constrained to recognise in his oral submissions before me, that overlooks what Moore-Bick LJ went on to say at paras.12 and 13, which was essentially to the effect that the courts have recognised the existence of implied sanctions capable of engaging the approach contained in rule 3.9 . Moore-Bick LJ said this:
"In Mitchell itself, however, the sanction from which relief was sought had not been prescribed as a consequence of default by any rule practice direction or previous order of the court. It was a sanction imposed by the court in the exercise of its discretion for a failure to comply with a rule that itself prescribed no sanction for default. To that extent it might be thought that the case did not fall within the natural ambit of rules 3.8 and 3.9 . Liberty to apply for relief from that sanction appears to have been given in order to allow fuller argument at a later date when more time could be made available; otherwise one might have thought that an appeal against the order imposing it would have been the more appropriate course. Nonetheless, the application proceeded under rule 3.9 and laid down principles which are intended to govern applications under that rule. The question remains, however, whether they were intended to govern applications, such as the present, for extensions of time where no sanction is prescribed for the default.
13. The consequences of failing to file a respondent's notice within the prescribed time are not spelled out in the rules, so on the face of it there is no sanction within the meaning of that expression in rules 3.8 and 3.9 from which the respondent needs relief. However, in a number of cases dating back more than a decade the courts have recognised the existence of implied sanctions capable of engaging the approach contained in rule 3.9 and therefore now the Mitchell principles. The first was Sayers v Clarke Walker [2002] EWCA Civ 645, [2002] 1 WLR 3095 …".
Moore-Bick LJ then considered that case and, specifically, the judgment of Brooke LJ dealing with 3.9 in that context. Then he goes on to say at para.15 of his judgment:
"In Mitchell itself the court made it clear at paragraphs 49-51 that it considered that similar principles applied in other cases of failure to comply with the rules, describing an application for an extension of time for service of particulars of claim as being in substance an application for relief from sanctions under CPR 3.9 , and since then the concept of the implied sanction has played a prominent part in a number of decisions…".
He then cites a number of cases, and then says:
"Accordingly, I think it is now established that an application for permission to appeal out of time is analogous to an application under rule 3.9 and is therefore to be decided in accordance with the same principles."
Then at 16 he says:
"The purpose of the respondent's notice is to enable Altomart to rely at the hearing of the appeal on grounds for upholding the judgment that were not before the court below. If an extension of time is not granted it will be unable to do so. To that extent that area of dispute will not come before the court. In my view for a respondent to be prevented from pursuing the merits of a case it wishes to pursue on the appeal is no more or less of an implied sanction than it is for an appellant to be prevented from pursuing its case on appeal. In my view, therefore, the Mitchell principles apply with equal force to an application for an extension of time in which to file a respondent's notice."
33. In my judgment, that reasoning is equally applicable to the second defendant's application for an extension of time in which to file an acknowledgement of service. The consequence of not being granted an extension would be that the acknowledgement of service filed on 12th November will have to be set aside as a nullity, and the second defendant will not be permitted to mount his challenge to the jurisdiction. That is clearly an implied sanction, just as the respondent's inability to pursue its case on the merits was in Altomart . Accordingly, in my judgment, the Mitchell principles apply.
34. The applicable principles are clarified in Denton v White and usefully summarised in Moore-Bick LJ's judgment in Altomart at paras.19 and 20, where he says as follows:
"More recently the rigour of the decision in Mitchell has been tempered by the decision in Denton . In that case the court recognised that Mitchell had been the subject of criticism and, while holding that the guidance it provided remained substantially sound, sought to explain in rather more detail how it should be interpreted and applied. In doing so it identified three stages of enquiry: (i) identifying and assessing the seriousness and significance of the default which engages rule 3.9; (ii) identifying its cause; and (iii) evaluating all the circumstances of the case, including those specifically mentioned…".
Those specifically mentioned are the two points specifically mentioned in 3.9, namely the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with the rules. What Moore-Bick LJ then goes on to say is:
"The court clearly contemplated that if the default is not serious and significant, relief is likely to be granted."
He then went on in his judgment to consider further passages from the Denton case which I do not need to summarise for present purposes."
"158. In my judgment, it is clear from these authorities, which are binding upon me, that:
i) Defective, or even no, service does not render a Claim or the Claim Form a nullity or cause it to be automatically struck-out. The Claim continues in existence unless and until the Court makes an order declining or refusing to exercise jurisdiction (and where CPR11 provides that a consequential striking-out order can then be made)
ii) Such an order (as far as one arising from defective or non-service is concerned) will only be made if there is an acknowledgment of service from a relevant defendant and subsequent application under CPR11. While the need for an acknowledgement of service is dealt with only in Koro (there having been acknowledgments of service in the other cases), I consider that it is clear from the wording of CPR11 and from the Court of Appeals decisions in Hoddinott @ paragraph 26 and in Koro (which is very highly persuasive even if that element can be said to be obiter)
iii) If there has been an acknowledgment of service but no application within the 14 days provided for by CPR11 there will be a statutory waiver by the relevant defendant of the service points unless relief from sanctions (and any other appropriate relief) is obtained by that defendant…
161. The present position is that there are no acknowledgments of service and no applications on the part of either of the Defendants. In those circumstances, it seems to me that I simply cannot decide the question of whether a jurisdiction challenge would succeed as none has been made. In theory I could waive the various failures to file acknowledgments of service under CPR3.10 and to issue application notices under CPR3.10 and CPR23.3(b) but that has not been argued fully (if at all) before me and would deserve substantial consideration including as to potential prejudice to the Claimants. Taking such a course summarily would also be, at first sight, inconsistent with the Court of Appeal's general statement in Koro and also various other decisions such as Talos v JSC [2014] EWHC 3977 , Taylor v Giovani [2015] EWHC 328 and Mansard v Beyat [2021] EWHC 3355 @ paragraphs 17 and 18 to the effect that defendants require permission to file acknowledgments of service out of time and especially where such is to be the first stage of their mounting a jurisdiction challenge.
162. However, I do think that I can decide the question of whether or not the Defendants require permission to file acknowledgments of service out of time. The Defendants submit that they do not because (a) the Claim Form was not served in time (CPR7.5(1)) and the November Order) and (b) the Particulars of Claim were not served in time (CPR7.4 and the November Order). They say that therefore the period in CPR10.3 for filing acknowledgements of service has never started to run.
163. I disagree, for the following reasons:
i) The Claim Form is not rendered a nullity by reason of defective or late service (see above). I do not see why it should follow from the CPR7.5|(1) or the CPR7.4 time for service requirement that eventual service out of time is a nullity. In my judgment it is service (assuming that it complied with the method of service rules, and which was clearly the case here, in relation to both the First Defendant and, if it is to be held to be SRL, the Second Defendant) albeit late service
ii) CPR10.1(3)(b) makes clear that an acknowledgment of service must be filed if a defendant wishes to contest jurisdiction. While I accept that in some circumstances a defendant may wish to make an application (a) where a claim form has not been served properly at all or (b) a claim form has been served in time in accordance with the CPR (e.g. a forum non conveniens or a revocation of permission to serve out of the jurisdiction application – and various cases cited by the Claimants relate to such circumstances which are in my view potentially conceptually different from that of a claim form which has been served late); it is a common case that a claim form has been served late. There is nothing in CPR10 to indicate that an acknowledgment of service is not required in such circumstances if a jurisdictional point is to be taken in consequence
iii) For a defendant to have to act within the combined CPR10 and CPR11 time-limits is entirely consistent with the policy of the rules. That policy is that a defendant may seek to challenge jurisdiction on service (or other) grounds but must do at an early first stage (see e.g. Texan Management v Pacific 2009 UKPC 46 @ paragraph 69 ). That results in certainty and avoids the possibility of a claim proceeding with a challenge to jurisdiction only being made at a stage later than close to the start. The rules achieve that objective by requiring a speedy acknowledgment of service followed speedily by an application to challenge jurisdiction. While it may be possible in a case of defective service for a defendant to say that there has been no service at all and that they therefore do not have to do anything until something which amounts to service has taken place, I cannot see it as being consistent with the statutory policy or scheme for them to be able to do nothing where actual service has eventually taken place even if out of time. That would also lead to immense uncertainty in the course of litigation
iv) Although Koro does not actually pose, or answer, this direct question; my answer is at least consistent with the statements that a defendant who wishes to dispute jurisdiction must get on and do so in accordance with the CPR."
"165. I accept that there are various decisions which suggest that late filing or service of procedural material at the early stage of the litigation renders the material itself a nullity. That is said to be the case in relation to late filed acknowledgments of service in Talos @ paragraph 33.
166. However, I do not see the (late) service of the Particulars of Claim (or of the Claim Form) as rendering them a nullity or, more importantly, such that they prevented the period for filing an Acknowledgment of Service under CPR10.3 from running. In my judgment, when the statutory scheme is considered as a whole, and essentially for the reasons given above, the effect of proper service (even if out of time) is that the statutory scheme does operate and the time for filing an acknowledgment of service does begin once that service has taken place. This does not result in any unfair prejudice as far as a relevant defendant is concerned, they have been served and the CPR provide that the consequence of service is that the defendant must file an acknowledgment of service (which is not a burdensome matter) and has a period of time to then either defend or to challenge jurisdiction."
I also, following the initial approval of the judgment transcript, appended footnote 1 to the reference to Talos in paragraph 165 (this appears on The National Archives Find Case Law cite but not on Westlaw), as follows:
"1 Following handing-down of this judgment, but before any further or consequential hearing, I have located the decision in Cunico v Daskalakis [2018] EWHC 3382. At paragraphs 27-34 Andrew Baker J considered the position under CPR11 where an acknowledgment of service had been filed late or not at all and held (paragraphs 31 and 34) that for CPR11 to be used in such circumstances required some judicial discretionary intervention as the requirements of CPR11 had not been met. At paragraphs 32-33 he held that the statements in paragraph 33 of Talos either were directed to a court setting aside an acknowledgment of service so as to (only) then render it a nullity or were wrong. I regard those paragraphs, which are in any event binding upon me, as being correct, and entirely consistent with this judgment."
"27. The first provision to note, not considered in the authorities summarised above, is CPR3.10, by which:
"Where there has been an error of procedure such as a failure to comply with a rule or practice direction—
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error."
28. CPR 10.1-10.2 provide, so far as material, as follows:
"10.1 Acknowledgment of service
(1) This Part deals with the procedure for filing an acknowledgment of service.
(2) …
(3) A defendant may file an acknowledgment of service if —
(a) he is unable to file a defence within the period specified in rule 15.4 ; or
(b) he wishes to dispute the court's jurisdiction.
(Part 11 sets out the procedure for disputing the court's jurisdiction.)
10.2 Consequence of not filing an acknowledgment of service
If —
(a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3 ; and
(b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14 ,
the claimant may obtain default judgment if Part 12 allows it."
The closing words, " if Part 12 allows it ", mean that, contrary to one of Marketing's submissions, CPR 10.2 does not say that default judgment may be entered after a (late) acknowledgment of service has been filed. That depends on what Part 12 says and in particular, therefore, on what CPR 12.3(1) means.
29. CPR 10.5 requires an acknowledgment of service to be signed by the defendant or the defendant's legal representative ( CPR 10.5(1)(a) ) and to include the defendant's address for service ( CPR 10.5(1)(b) , with a cross-reference to CPR 6.23 for rules as to addresses for service).
30. Turning to CPR Part 11 , CPR 11(1) provides that a defendant who wishes to dispute jurisdiction or argue that the court should not exercise jurisdiction may apply for an order declaring that the court has no jurisdiction or should not exercise jurisdiction, but by CPR 11(2) , " A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10 ". If a defendant files an acknowledgment of service but does not make an application under CPR 11(1) within 14 days of that filing, " he is to be treated as having accepted that the court has jurisdiction to try the claim " ( CPR 11(5) ). (In the Commercial Court, that limit is 28 days rather than 14 days: CPR 58.7. )
31. Dealing with that language of Part 11 straight away, filing acknowledgment of service " in accordance with Part 10 " is a procedural requirement for the making of an application under CPR 11(1). That is what CPR 11(2) says. A late-filed acknowledgment of service is not filed " in accordance with Part 10 ". So a defendant who applies under CPR 11(1) without having first filed a timely acknowledgment of service requires an extension of time or a waiver of the procedural requirement. That explains Talos Capital , supra . It means that the dismissal of the Part 11 application in that case did not require the setting aside of the acknowledgment of service, although it was in fact set aside. (For the avoidance of doubt, I think it clear that Flaux J was setting aside the acknowledgment of service independently of its ceasing to have effect under CPR 11(7) once the challenge to jurisdiction failed.)
32. Flaux J said at [33] and [44] that he was setting the acknowledgment of service aside " as a nullity ", although (so far as I can see) there was no application to set it aside and, as I have observed already, setting it aside was not necessary to the decision of the applications before Flaux J. His references to a late acknowledgment being a 'nullity' are the uses of language that have had an influence in some of the default judgment cases, as I explain below. An acknowledgment of service set aside by the court ceases to have effect and, in law, is thereupon treated as a nullity. That is what setting something aside means. But if Flaux J meant to suggest that an acknowledgment of service is a nullity when filed late, prior to being set aside and whether or not it is ever set aside, then, with respect, I cannot agree; and to the extent that at [33] and [44] he expressed the view that if an extension of time was refused, the acknowledgment of service had to be set aside (with no exercise of discretion involved), that was unnecessary to the decision before him and again I do not agree. There is no provision to that effect in the CPR and CPR 3.10(a) is to precisely contrary effect.
33. Even the statement that upon being set aside, an acknowledgment of service is treated as a nullity may require a little care. Assuming it to have been proper in form, a late-filed acknowledgment of service will have given an address for service for the defendant complying with CPR 6.23 . If the acknowledgment of service is set aside, that will cease to be an address for service, but service of documents in the proceedings previously effected by using that address is not retrospectively invalidated.
34. There is a clear and important difference between, firstly, whether some effect or consequence obtains under the CPR only upon some step being taken in timely fashion and, secondly, whether a step not taken in timely fashion may be set aside, undoing the effect or consequence it otherwise had or would have had. Thus, where there has not been timely acknowledgment of service, a defendant is disabled from applying under CPR 11(1) (absent an extension of time or waiver) because CPR 11(2) requires timely acknowledgment before an application under CPR 11(1) , not because the acknowledgment of service is a nullity. The existence of that requirement on the language of CPR 11(2) , with its consequence under Part 11 for a late acknowledgment of service, is uninformative as to whether a defendant who files a late acknowledgment of service " has not filed an acknowledgment of service ", which is the language of CPR 12.3(1) to be construed here."
i) Where a claim form is validly served in time but defendants seek out of time to challenge jurisdiction either on the basis that the court has no jurisdiction or on the basis that the court should not exercise jurisdiction. That was the situation in Mansard and in Talos; there the defendants' only route was to seek to file an acknowledgement of service and make a Part 11 application late, as otherwise there was simply no problem in the relevant claimants continuing their claim since there had already been an altogether valid service in time. It seems to me that that situation is fundamentally different from the case before me of there being no valid service in time, but only effective service out of time, and therefore those authorities are of limited assistance. That was also the actual situation in Hoddinott unless and until the order there extending the time for service was set aside
ii) Where an invalid service method has been used and no valid service method has been used thereafter. In that situation there is no valid service at all. What has happened has simply been ineffective. It therefore, in my judgement, follows clearly that the claim cannot proceed because service, unless the court otherwise orders, is the way in which the court takes jurisdiction over the defendant. No time-limit for the defendant to have to do anything (e.g. file an acknowledgment of service under CPR10.3) has started to run, and the defendant does not have to do anything at all. Therefore anything done in the proceedings, and especially a default judgement which can only be obtained on the basis that the defendant has not filed an acknowledgement of service or defence in time, and where the time limits for doing so run only from the date of effective service, must, on application, be set aside. That was the position in YA II and in Shilaq and in Barton, and in Koro. In each case the court proceeded on the basis that the alleged service relied upon by the claimant had been invalid because an inappropriate service method had been used
iii) Where an appropriate service method has been used but only out of time. Only Pitalia and the Previous Judgement concerned such a factual situation. However, in Pitalia, as set out in the paragraphs from that judgment which I have cited above, the defendant had filed an acknowledgement of service in time and made a set aside application in time (from the actually effecting of service) but faced the problems that:
a) there was a failure to indicate an intent to contest jurisdiction in the acknowledgement of service form - that was held to be immaterial see paragraph 34 of that judgment;
b) there was a failure to refer to CPR Part 11 in the application notice- that failure was waived by the first instance judge and the Court of Appeal under Civil Procedure Rule 3.10 - see paragraphs 35 to 38 of that judgment.
"7.5
(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form…
(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue."
"6.14 A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1)."
"6.40 (1) This rule contains general provisions about the method of service of a claim form or other document on a party out of the jurisdiction.
Where service is to be effected on a party in Scotland or Northern Ireland
(2) Where a party serves a claim form or other document on a party in Scotland or Northern Ireland, it must be served by a method permitted by Section II (and references to 'jurisdiction' in that Section are modified accordingly) or Section III of this Part and rule 6.23(4) applies.
Where service is to be effected on a party out of the United Kingdom
(3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served –
(a) by any method provided for by –
(i) Omitted
(ii) rule 6.42 (service through foreign governments, judicial authorities and British Consular authorities); or
(iii) rule 6.44 (service of claim form or other document on a State);
(b) by any method permitted by a Civil Procedure Convention or Treaty; or
(c) by any other method permitted by the law of the country in which it is to be served.
(4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served."
"10.3
1) The general rule is that the period for filing an acknowledgment of service is—
(a) 14 days after service of the particulars of claim where the defendant is served with a claim form which states that particulars of claim are to follow; and
(b) 14 days after service of the claim form in any other case.
(2) The general rule is subject to the following rules—
(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);
(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and
(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction)."
i) Claims where only an inappropriate service method has been used are qualitatively different from the other two situations. There, there has been no service in law at all, and also nothing to trigger the CPR 10.3 requirement to file an acknowledgement of service as that only operates once there has been use of an appropriate service method or a validating order.
I note even then, according to the Court of Appeal in Koro at paragraph 68, that their primary view is that to actually challenge jurisdiction and have the claim form set aside still requires a defendant to adopt the CPR Part 11 route – albeit that there would then be force in the contention tha,t in those circumstances, as the defendants had not yet breached the CPR10.3 time limit (as that time limit had never started to run) they can still serve an acknowledgement of service at any time (at least until there has been service of the claim form and particulars of claim by an appropriate service method) and make (within 14 days of doing so) a CPR Part 11 application
ii) It seems to me that the real question is whether the expiry of the CPR 7.5 time limit means that there can no longer be any effective service of the claim form such as to start CPR time limits, including to file an acknowledgement of service under CPR 10.3, running; in other words, whether an out of time use of an appropriate service method is simply wholly ineffective (because, as Mr Calland submits, the Claim Form is "expired" and thus "dead" or "in limbo") or whether it is effective service subject to the ability of the defendant to make a CPR Part 11 challenge so long as an acknowledgement of service is filed within the CPR 10.3 time limit from the time of that appropriate service method and a CPR Part 11 application is made within 14 days thereafter
iii) The answer to that question is really a matter of construction of CPR 7.5 and the various other rules (including CPR10.3). I have engaged in the usual construction process of considering the words used, the general matrix of the rules, the various existing case law and the statutory purpose. I have carried out an holistic iterative analysis considering the various construction possibilities together rather than rejecting various and falling back on a default interpretation.
It seems to me that I should favour and accept Mr Sawtell's construction, and hold that the claim form is not "dead" or "in limbo" and that the claim form can be effectively served out of time by use of an appropriate service method so as to trigger the CPR10.3 and consequent CPR11 time-limits for an application to be made for the court to declare it has no jurisdiction (or, I think, more accurately, for the court to decline jurisdiction) and in consequence to strike-out the clam form, in particular for the following reasons:
a) The relevant time-limit relates to the completing of "a service step". The completion of such a service step under CPR 7.5(1) results in service then being deemed to take place under CPR6.14. Thus, the taking of the surface step and the resultant deemed service are both linguistically separate within CPR7.5(1) and CPR6.14 from the time limit of four months after the date of issue of the claim form for the taking of the service step as expressed in the wording of CPR 7,5(1). That wording does not, at first sight, suggest to me that no service has taken place if the service step has only taken place out of time. It seems to me much more clear, and which can be seen by way of contrast, from the words used in CPR 7.5(1), and also in CPR 6.40, that the taking of an impermissible service step or use of an inappropriate service method is simply no service at all
b) The same linguistic point exists in relation to CPR 7.5(2) but all the more so. The fact of service seems on the wording to be an event separate from any consideration of the time period within which it must occur
c) Further the CPR 10.3 time limit for filing an acknowledgement of service runs simply from "service" and is not expressed in any way to run from only a service which had taken place in time. That is a point picked up in the Cunico decision and in my Previous Judgement as I refer to below
d) That distinction seems to me to be a very logical. The procedure rules lay down that for a party to be affected i.e. for the court to take jurisdiction over them, service must be effected in one of various particular ways satisfying local law requirements. That is not surprising as otherwise the defendant will not know properly that they need to take steps to resist the claim. The situation, however, is different in relation to the time limit for taking of a service step (as opposed to the nature of the service step which has to be taken). Notwithstanding that the defendant will have received the proceedings late, they will still have received the proceedings in a proper manner and so will be in a full position to know how to take steps to resist the claim. To an extent this analysis is reinforced by the fact that the defendant will know how they have received the proceedings; and therefore the method of purported service; and therefore will in general be able to consider whether or not there has been true service in law. What the defendant cannot necessarily tell is whether the service step has been undertaken within the CPR 7.5 limit (e.g. when receiving the material by post the defendant is likely not to have been told when the posting took place) - on the other hand it would seem potentially to be odd if the defendant's obligation to respond at all (even though they might not know from when the CPR10.3 time limit would run as a result of the deeming provision in CPR6.14 – but that problem exists whether or not the service step was taken within time) to receipt of the proceedings by an appropriate method should be dependent upon a matter of which the defendant might well not have direct knowledge
e) There is some support for this in Hoddinott in its paragraph 23 which envisages that that court may have jurisdiction to try a claim where the claim form has been served late. However, I consider that the Court of Appeal did not decide whether this situation is a "no jurisdiction" CPR 11/(1)(a) case or a "will not exercise a jurisdiction" CPR 11(1)(b) case - see the fourth sentence of paragraph 23 - and so the support for this analysis in Hoddinott is very limited
f) The is something against this analysis in the reference of the Supreme Court to "expired claim form" in Barton. However, I see the use of those words and the picking up of that reference in Pitalia to be simple shorthand for the expiry of the CPR7.5(1) time limit. In Barton there was no question of any CPR Part 11 application being out of time; rather no consideration was given to the CPR Part 11 process (or to the CPR10.3 process) or to Hoddinott at all, and it seems to me Pitalia proceeded on the same limited basis, both without engaging with (or deciding) the points which are before me
g) It would seem somewhat incongruous for a claim form which has not been served within time not to be a "nullity" (see Hoddinott, Pitalia and Koro) yet to be in "limbo" – a state (although, obviously, one would not expect the word "limbo" to be used) to which no reference is made in the CPR
h) The decision in Koro, following Pitalia and Hoddinott, makes clear. at least according to the primary reasoning of the Court of Appeal, that a CPR11 application is required for a claim, where no valid service has taken place within time. to be terminated. It would seem odd if the claim could remain in simple limbo, without any steps being required to be taken, even where it had been brought fully to the defendant's attention by use of an appropriate service method. Indeed it seems to me that there is no reason why a defendant should not have to respond to the use of an appropriate service method even if utilised only out of time. CPR Parts 10 and 11 lay down exactly what such a defendant needs to do. For them to say that they can wait for the claimant to obtain a default judgement and only then take steps to resist the claim on the basis of no valid service within time seems to me to be a recipe for delay and confusion contrary to the overriding objective as set out in CPR 1.1. It is true that the hypothetical defendant could say that the burden is on the claimant to apply to validate service, but the hypothetical claimant may well believe that they have taken a valid service step within time, as indeed was the actual claimant's primary case before me up to and at the hearings which gave rise to the Previous Judgment
i) My previous judgement may somewhat favour this conclusion in particular in what is stated in paragraph 166 but also in paragraph 165. Further, it seems to me that the analysis in Cunico also favours this conclusion where it holds that an acknowledgment of service filed late is not a "nullity" (even if it can be made the subject of an application to set aside), and which gives some support by way of analogy to the propositions that a claim form does not simply become ineffective because it is served out of time and that service of a claim form out of time by an appropriate service method is not ineffective (and starts other time-limits, including for the filing of an acknowledgement of service and consequent CPR11 application, running). Mr Calland would submit that even if Cunico is right then the claim form is still in "limbo" and the action cannot proceed. I disagree; if time-limits are running then that for the filing of an acknowledgement of service is running and the claimant can still technically obtain a proper default judgment once the time for filing an acknowledgement of service has expired (all subject to the usual rights to make applications to set aside the default judgment and/or to seek an extension of time for filing of an acknowledgment of service (and any CPR11 challenge) etc.)
j) I do not see much in Mr Calland's point that on this analysis a claim form could still be the subject of effective service notwithstanding that that took place years late. The same points arise. The claim form can then be successfully attacked by the use of an in time acknowledgment of service and CPR11 process. If not, the claim (which is not a nullity – above) continues. The difference is quantitative, not qualitative, in nature
k) Finally, as stated above, I consider my construction promotes certainty and which is a general policy underlying the CPR. Once an appropriate service method has been used, as provided for by CPR7.5(1), and whether or not that has occurred within the time limit, it seems to me that deemed service will then occur under CPR6.14, and the defendant will then have the CPR10.3 time for filing an acknowledgement of service and following that the CPR11 time to apply to dispute jurisdiction. That has clear and desirable certainty which Mr. Calland's construction lacks as it may be altogether unclear when the relevant service step was taken; and, according to Mr Calland, a defendant can potentially just wait and see whether or not the claimant takes any further step, such as requesting a default judgement.
i) best accords with the wording of the CPR including CPR 7.5, CPR6,14 and CPR10.3
ii) best accords with my view of the statutory purpose of the CPR and its service and consequent steps scheme
iii) best avoids uncertainty and unreasonable outcomes, and
iv) is not inconsistent with authority, but is supported by some authority, and is in line with the modern approaches of the Court of Appeal and High Court Judges.
"3.9
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence."
And the decision in Denton v White 2014 EWHC 906 which requires a 3 stage analysis as to:
(1) Whether the breach is serious or substantial
(2) Whether there is good reason for the breach
(3) Whatever (but informed by) the answers to (1) and (2), whether the applicant for the relief has satisfied the substantial burden of showing that it is just in all the circumstances for it to be granted, including giving weight (but not predominant weight) to the CPR3.9 factors (which can be summarised as considering the effect of the breach on the progress of the litigation and the importance of compliance with rules, practice directions and orders)."
i) Although the application was made over a year after the time limit expired, it was not a serious or substantial breach where the claimant had already brought questions of the validity of service to the court by the claimant's own application of 28 April 2023. There would have been a course of hearings in any event including this one, not least because of the claimant's own application for an extension of time for service of particulars of claim and to add more claimants. Mr Calland submits that no real delay has resulted from the defendant not applying earlier
ii) There was good reason or at least some cause for the defendant's delays where:
a) the law was not clear
b) the claimant had already brought the matter to the court, and
c) the defendant was acting on the advice of lawyers
iii) In all the circumstances it would be just to grant the extension of time and allow the CPR11 application to be made and proceed:
a) In the light of the above
b) As the claimant had already brought the service matter to court and so these delays would have occurred anyway
c) As the claim was in any event "in limbo" – a contention which I have rejected as a matter of law (see above)
d) As there had been no deliberate flouting of the rules
e) Further it would be wrong to allow for an extension of time to file an acknowledgement of service on the basis of a condition (CPR3.1(3)(a)) that there be no CPR11 application, and especially where it has already been held in the Previous Judgment that a CPR11 application would be highly meritorious.
i) There was a serious and substantial breach. The application was only made for relief from sanctions more than one year after the relevant time limit had expired.
In this and other contexts, Mr Sawtell referred to my having sent to the parties emails informing them of the point regarding the potential need for there to be an acknowledgement of service filed and CPR 11 application made by the defendants. The first email was to the claimant dated 2 June 2023 (and which was forwarded to the defendants on 16 June 2023) and read:
"The Master draws attention to the decision in Thomas v Home Office 2006 EWCA Civ 1355 and also to the White Book notes at 11.1.5. and 11.1.8 (and case-law following including e.g. Macari v Chequered Flag 2021 EWHC 3175) and wishes to have it clarified as to whether either or both Defendants contest the Claimant's Application and/or are making any applications of their own and as to what is the position regarding Acknowledgments of Service."
The second was sent out to all parties on 7 July 2023 and read:
""The Master has considered the emails attached and draws attention to CPR Parts 10 and 11 and such decisions as Hoddinott v Persimmon 2007 EWCA Civ 1203, Joe Macari v Chequered Flag 2021 EWHC 3175 and, most recently, Pitalia v NHS 2023 EWCA Civ 657 (although the Master is presently approving a transcript of his own judgment in a further case in this area). It is for the parties to consider what, if any, applications or requests to make but the Master regards it as appropriate (at least at present) to direct a hearing of the Claimant's application (which is the only one which has been made in accordance with CPR23)… The Master is not prepared to grant a stay in the absence of agreement where, at first sight and provisionally only, CPR11 contains its own relevant procedure, but will consider any Application Notice. The Master notes that the defendants' solicitors are not presently on the court record."
Then, when I adjourned the previous hearings (leading up to the Previous Judgment) following the presenting by the parties of their main submissions on 8 November 2023, with the intention that final submissions would be delivered and a judgment would be delivered on 8 February 2024, I made an order, paragraph 3 of which read (with subsequent paragraphs providing a timetable for evidence etc.):
"Should the Defendants wish to rely on any further evidence or make any application, they must issue (if appropriate), file and serve the relevant material before 4pm on 22 December 2023. The question of permission will be considered at the part-heard hearing."
Mr Sawtell pointed out that the defendant did nothing in response to each of these invitations to engage with the need for an acknowledgement of service or CPR11 application or relief from sanctions. He submitted that this caused matters to be lengthened out especially as in the absence of an application the claimant agreed with the (then both) defendants to vacate the 8 February 2024 listed hearing on the basis that the parties would only make submissions on paper and the court had no need to hear any oral submissions
ii) There was no good reason for the breach; as the defendant had been notified of the point by the Court (see above) and had taken a deliberate decision to do nothing rather than read and assimilate the case-law and identify the need, at least, to make an early application. Any reliance on legal advice was no excuse where such advice was incorrect
iii) It was not just to grant relief from sanctions, and especially as:
a) The application was very late, and there has been a consequent disruption to the process of the litigation, and where the application could have been considered at the time of the Previous Judgment, this all being relevant to the CPR3.9(a) factor
b) There was a much longer delay than the 53 days in Talos which itself was too long (see that judgment at its paragraph 35)
c) There was a deliberate delay, even if that resulted from legal advice and which is no justification – see Talos at its paragraph 40
d) The delay has resulted in at least one further hearing – and see Talos at its paragraph 40
e) There was a disregarding of the November 2023 Order which afforded a specific opportunity to apply and which was not taken up; this should be a weighty matter under CPR3.9(b). In this regard Mr Sawtell also referred to the importance of compliance with orders as stated in Global v Apex 2014 1 WLR 4495 at paragraphs 22-23:
"22. There is undoubtedly attraction in the contention that preventing the Prince from challenging his liability for $6m is a disproportionate sanction in circumstances where he appears to have what was referred to on his behalf at first instance as "a substantive defence" (and as it was put by Mann J in his first judgment). A stark view of the Court of Appeal's decision is that it deprived a defendant of the opportunity to maintain a defence to a claim for $6m simply because he has failed to comply with an order that he sign a document, when his solicitor was prepared to sign it on his behalf. Expressed thus, the decision may indeed look like an overreaction, and that is no doubt how it would strike the Prince.
23. This contention effectively involves saying that, although each decision on the way to the final result is unassailable (at least subject to the Prince's two remaining arguments), the final result is wrong on the ground of lack of proportionality. I suppose that may be logically possible, but it is a difficult position to maintain. More to the point, in my view, on analysis, the contention does not stand up. The importance of litigants obeying orders of court is self-evident. Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons. Of course, in a particular case, the court may be persuaded by special factors to reconsider the original order, or the imposition or enforcement of the sanction."
f) This is all to be seen in the context of CPR10 and CPR11 which lay down a strict time-limited period for jurisdiction challenges including for late service of a claim form – Koro and Mansard both emphasised the CPR policy being that such matters should be dealt with a very early stage of the litigation and should not be lengthened out
g) The correct answer should be to allow the defendant to defend the substantive case but not to challenge jurisdiction. The court should either direct the defendant to just file a defence or grant permission to file an acknowledgment of service out of time on condition that no CPR11 application can be brought.
i) The defendant relied on legal advice
ii) The November Order did not place a positive requirement on the defendant to apply but only gave an opportunity
iii) The proceedings would have been lengthened out in any event due to the Koro judgment only appearing on 8 February 2024, so, even if there had been an application made by the defendant and the parties had made oral submissions on that date, the Koro judgment would have necessitated a rewording and further submissions in any event.
i) The CPR contains no express sanction for late service of particulars of claim (unlike for late service of the claim form where CPR11 applies, or for late service of an acknowledgment of service or defence where there are CPR12 potential consequences of default judgments)
ii) The Court of Appeal decision in Yesss v Martin Warren 2024 EWCA 14, cited in paragraph 13 of Brown:
"13. CPR 3.9 applies where a party seeks relief from any sanction imposed for a failure to comply with any rule, practice direction or court order. In Yesss (A) Electrical Ltd v Martin Warren [2024] EWCA Civ 14 , the Court of Appeal considered the circumstances in which the rule is engaged. Birss LJ explained the position as follows: "the general approach to working out whether a case is covered by r3.9 is to start by identifying if a rule, PD, or order has been breached. If there is none then the rule does not apply. If there has been a breach then the next task is to identify any sanction for that breach which is expressly provided for in the rules, PDs or in any order. If there is no such express sanction then, outside the third category identified in FXF and the specific recognised instances of implied sanctions identified in Sayers, and Altomart (i.e. notices of appeal and respondent's notices), there is no relevant sanction for the purposes of r3.9, and so that rule does not apply ." The third category identified in FXF (see paragraph 27of Yesss ) arises where a step is taken as a result of the non-compliance such as the entry of default judgment. The parties agree that that category has no application here."
is very restrictive on the implication of sanctions into the CPR and makes no mention to there being any sanction imposed in relation to late service of particulars of claim
iii) The Court of Appeal decision in Totty v Snowden 2002 1 WLR 1384 cited in paragraph 19 of Brown:
"19. The matter is put beyond doubt by Totty v Snowden [2002] 1 WLR 1384 cited in Venulum at paragraph 52. The Court of Appeal in that case specifically decided that CPR 7.6 did not apply to service of the Particulars of Claim. Kay LJ said: " I consider that there is a perfectly sensible reason why a distinction could be drawn between service of the claim form and service of the particulars of claim. Until the claim form is served, the defendant may be wholly unaware of the proceedings. He may, therefore, because of his ignorance be deprived of the opportunity to take any steps to advance the case. The same would not be true if the claim form had been served but the particulars of claim were outstanding. In such circumstances it would be open to a defendant either to seek an order for immediate delivery of the particulars of claim or, if it was justified, to seek to strike out the claim. Thus a strict regime in relation to the claim form and a discretionary regime subject to the overriding objective is a perfectly sensible approach to the differing problems raised by the two types of failure to comply with the rules as to service…..For these reasons I have come to the conclusion that there is no justification for concluding, in the absence of express words to that effect, that the particulars of claim come within the provisions of rule 7.6 by implication. Thus, I am satisfied that the court does have a discretion to extend time in circumstances such as those in this case. "
is at least somewhat inconsistent with there being a relief from sanctions approach to be applied
iv) The concept that relief from sanctions is required is inconsistent with my own decision in the Previous Judgment that late service is valid even if capable of being the subject-matter of a procedural attack.
i) Where there is a procedural attack made by the defendant (e.g. under CPR3.4(2)(c) – power to strike-out a statement of case for breach of a rule, practice direction or order), the claimant is, in practice, in a position where they require a discretionary extension of time, and for which the claimant before me has already applied
ii) While the Court will apply the overriding objective in CPR1.1 to the question of whether such an extension should be granted, and not the more burdensome CPR3.9 relief from sanctions regime, the Denton 3-stage analysis remains a useful tool and such matters as enforcing compliance with rules, practice directions and orders (see CPR1.1(2)(g)) and effect of the delay on the litigation remain relevant.
i) The delay was short as service of the particulars of claim on 10 May 2023 was only 2.5 weeks out of time
ii) The application was made promptly on 28 April 2023 only 7 days out of time
iii) While, as he accepts, the breach was serious or significant, it was thus limited
iv) At least some reason for the delay was that the claimant was awaiting proper evidence from their fire expert; and Mr Sawtell referred to the general principle in professional negligence cases that a claim of that nature required there to be be existing expert evidence in support – see ACD v Overall 2012 EWHC 100 referring to the previous decision in Pantelli v Corporate 2010 EWHC 3189, see at paragraphs 15-16 of ACD:
"15. I now turn to the Pantelli decision and the ramifications of it. As is clear from the decision itself, Mr Justice Coulson struck out the Defendant's Defence and Counterclaim because the Defendant had failed without excuse to comply with an "unless" order (see Paragraph 19 of the judgment). Other relevant parts of the judgment are:
"16. There is a second, separate reason why I am in no doubt that those parts of this Amended Defence and Counterclaim that purport to be allegations of professional negligence should be struck out. That is because, even though the work that is now the subject of these purported allegations was carried out three years ago, there is no expert evidence of any kind to suggest that that work was carried out inadequately, or was in some way below the standard to be expected of an ordinarily competent quantity surveyor. Not only is it simply not good enough to turn a positive contractual obligation into an allegation of professional negligence by adding the words "failing to" to the obligation, but it is also wholly inappropriate to do so in circumstances where there is no expert input to allow CCD to make such an allegation in the first place.
17. Save in cases of solicitors' negligence where the Court of Appeal has said that it is unnecessary (see Brown v Gould & Swayne [1996] 1 PNLR 130 ) and the sort of exceptional case summarised at paragraph 6-009 – 6–011 of Jackson & Powell, Sixth Edition, which does not arise here, it is standard practice that, where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise. That is a matter of common sense: how can it be asserted that act x was something that an ordinary professional would and should not have done, if no professional in the same field had expressed such a view? CPR Part 35 would be unworkable if an allegation of professional negligence did not have, at its root, a statement of expert opinion to that effect.
18. On a related point, also referred to during the course of argument, I note that the Code of Conduct at paragraph 704 prevents a barrister from drafting any document which contains "any statement or fact or contention which is not supported by the lay client or by his instructions [or] any contention which he does not consider to be properly arguable". Since an allegation that a professional fell below the standard to be expected of his profession is not a matter which can be supported by a lay client, and since a barrister pleading a case in professional negligence without expert input cannot know whether the allegations are properly arguable or not, I consider that paragraph 704 of the Code is entirely consistent with the usual practice which I have set out in paragraphs 16 and 17 above.
19. In the present case, although this is a claim that has been in existence for some years, CCD have chosen not to avail themselves of any expert input to support their allegations of negligence. There is no explanation for that failure. It is wrong in law and practice to make such unsupported allegations in this way, and I regret that they were ever made. In the light of the terms of the agreed unless order, they must be struck out."
16. A number of comments can be legitimately made about these observations:
(a) They are not expressed to and do not lay down an immutable rule of practice that in those circumstances no pleading can be put forward which pleads professional negligence unless and until the party pleading has secured supporting expert evidence. One only has to consider the practical example of a Claim for fees which is issued and served and, in accordance with the CPR , a Defence has to be served within 28 days, failing which judgement in default can be entered; it would be contrary to principles requiring a fair trial that the Defendant would in effect be barred from presenting a Defence and Counterclaim which raised legitimate defences including some based on allegations of professional negligence against the Claimant.
(b) There is under the CPR the requirement that pleadings should be supported by a Statement of Truth ( CPR Part 22 generally). CPR PD 22 Paragraph 2.1 requires the statement of truth verifying a statement of case (including a Defence) to say:
"I believe that the facts stated in this [document being verified] are true".
One can envisage circumstances in which a defendant or claimant may legitimately or at least not dishonestly believe that the facts stated in his or her pleading are true, even where they involve allegations of professional negligence against the other party and where no expert evidence has yet been retained. Obviously, there must be sufficient for the maker of the statement to make it.
(c) As Mr Justice Coulson says above, there are obviously some cases of professional negligence in which expert evidence is not required.
(d) Where there are explanations as to why the party pleading professional negligence has not or has not yet acquired expert corroboration for its allegations of professional negligence, the Court can look at those reasons in making up its mind as to what is an appropriate course. Thus, it may be legitimate for the Court to bear in mind that it is disproportionate, costs-wise, for expert evidence to be secured at a very early stage in the case, particularly where the amounts in issue may be small or where there is a sensible prospect of mediation or other amicable resolution. This, in my judgement, gives effect to the overriding objective.
(e) Matters may however be different in circumstances in which a party relying on professional negligence allegations makes it clear that it does not need expert evidence, gives a clear impression that it has no intention of securing expert evidence or, as in the Pantelli case that party without good reason has proceeded for a long time during the litigation without securing such evidence. The other party in those circumstances can then take steps, in an extreme case by way of a striking out application or by other more cost effective means, to bring this to the attention of the Court. It is open to the Court to strike out allegations of professional negligence which in its judgement would have to be supported by expert evidence to stand any realistic prospect of success in circumstances in which the party making such allegations makes it clear that it has no intention of obtaining such evidence. Another fairer course open to the Court, having established that the party making the allegations would need such evidence, would be to give that party a reasonable opportunity to obtain such evidence. Obviously, that may depend upon the stage at which the point arises and, for instance, that may be inappropriate at a very late stage in the proceedings or even during the trial."
v) The prejudice to the defendant of granting the extension would be slight, and where the prejudice to the claimant of refusing it and not allowing this claim to proceed would be much greater in terms of costs consequences and a possible limitation bar to a second claim
vi) The defendant in the letters from its solicitors in December 2022 seemed to be content with a timetable which would only require the claim for and particulars of claim to be served in June 2023.
i) There was nothing which amount to a good reason for the delay
ii) The claim against this defendant is not a professional negligence claim even if that against the second defendant was. In any event, the claimant had had a long time since the fire in summer 2019 to obtain an expert report
i) This is not a situation of the claimant requiring relief from sanctions (see above) albeit that I have borne in mind the importance of there being compliance with rules, practice directions and orders (CPR1.1(2)(g))
ii) The delay was short, only 2.5 weeks
iii) The application was prompt – it was made only a few days after the time for service had expired
iv) The defendants, including this defendant, had earlier accepted the principle that the claim for and particulars of claim would only be served in June 2023, even if they had contemplated a different chronology of various events
v) I do not see any particular potential prejudice to the defendant arising from the late service itself – any limitation advantage to be gained by a refusal of the extension would be a side-windfall, especially in circumstances where the defendant knew full well what was happening
vi) In Brown HHJ Bird concluded that it would be disproportionate to refuse an extension which refusal would effectively lead to a strike-out of the claim where the underlying evidence would not have been impaired by the delay in service, and I consider this case to be similar on all those points, and that a refusal, and consequent strike-out, would be disproportionate to the breach here.
i) I accept that this is a situation of the application of the full relief from sanctions regime (see above) and so that CPR3.9 and Denton are fully in point
ii) This is a situation of serious and substantial breach. The delay is very substantial and the CPR contains its own sanction for any delay
iii) There was no good reason for the breach. I accept that the claimant had made their own misconceived application, and that the law was in a state of development where different lawyers may have held different views, and that I myself have regarded the status of the claim form, in the circumstances of late use of an appropriate service method, as being a difficult question. However, I see the general principle of the need for an acknowledgement of service to be filed, and, following that having taken place, for a CPR11 application to be made, to have been clear - see all the case law cited in the Previous Judgment the majority of which, although not Pitalia and Koro predated April 2023and May 2023. However, even if there was some real reason not to file an acknowledgement of service and apply under CPR 11th in time in May 2023; I drew specific attention to this aspect by my emails of June 2023 and July 2023, and also in the November 2023 order, but nothing was then done at any of those points
iv) I have considered all the circumstances of the case and as to whether it is just to grant relief from sanctions:
a) here Denton makes clear that:
i) There is a heavy burden on the applicant for relief from sanctions, here the defendant
ii) the outcome of the 1st 2 stages of the Denton approach is relevant but is not at all conclusive
iii) the court should give considerable weight to the CPR free .9 factors; the effect of the breach on the course of the litigation and the importance of compliance with rules, practice directions and orders
b) I have borne in mind Mr. Calland's points in relation to his assertion that the claim form was in a "limbo" state as a result of it not having been validly served in time, and an appropriate service method only having been used out of time. However, I have rejected those points (as to the consequences of the late service) as a matter of law see above
c) I have borne in mind Mr. Calland's points with regard to the fact that the claimant made their own application and that everything was before the court in relation to the claimant's attempt to persuade the court that service had taken place within time or that a validation order should be granted, and that the claimant failed on those aspects. All that is a factor of real weight in favour of granting the defendant what Mr Calland argues with force is to some extent a technical relief from sanctions in order to complete the consequences of the claimant's applications having failed; and where it could be thought that a necessary result of the claimant's applications failing should be that the claim should end -particularly since the only purpose of the claimant's own applications was to enable the claim to continue
d) I have also borne in mind the importance of the defendant's rights under the law of limitation where Barton and other cases make clear that the extension of the limitation period, by way of a claim only having to be commenced within it and the claimant then having another four months (or longer agreed or ordered period) in which to serve, is an invasion of those limitation rights; and that any further extensions should only be permitted on a restricted basis and in accordance with law; and where, in the circumstances of this case, the claimant has breached the essential rules of service procedure. Again, those matters have weight on the defendant's side
e) However on the other side are factors which are also of weight:
i) the defendant committed a serious and substantial breach of relevant rules of the CPR which are designed to ensure that contests as to jurisdiction take place quickly at a very early stage in the litigation, and do so on a basis where the court and the claimant are fully informed as to what is sought, and where such "informing" should take place on a formal basis i.e. by acknowledgment of service and then application notice. The defendant committed such breach without any good reason
ii) The defendant failed to take up the Court's, being my own, invitations to correct the situation in June 2023 and July 2023. That has resulted in both delay and in a real lengthening out of the process of these hearings, and quite possibly the need for an extra hearing following the previous judgement which otherwise would have taken a different form had the defendant made its applications before then
iii) The defendant also failed to comply with my November 2023 order setting a time limit for the making of an application of the nature which the defendant has now sought to make. It is true that the effect of Koro, and of the timing of the delivery of that judgement, is such that that failure has probably not resulted in the need for an extra hearing, but it is a material breach of a material order
f) I have concluded having balanced these matters that the defendant has not discharged the burden of showing that it is just to grant relief from sanctions. There are matters weighing on both sides and the burden (whether it is described as "heavy" or "substantial") is a significant one.
"78. The Defendants further rely upon CPR19.6 which reads:
(1) This rule applies to a change of parties after the end of a period of limitation under –
(a) the Limitation Act 1980 ;
(b) the Foreign Limitation Periods Act 19842; or
(c) any other enactment which allows such a change, or under which such a change is allowed.
(2) The court may add or substitute a party only if –
(a) the relevant limitation period(GL) was current when the proceedings were started; and
(b) the addition or substitution is necessary.
(3) The addition or substitution of a party is necessary only if the court is satisfied that –
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b) the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
(c) the original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party.
(4) In addition, in a claim for personal injuries the court may add or substitute a party where it directs that –
(i) section 11 (special time limit for claims for personal injuries); or
(ii) section 12 (special time limit for claims under fatal accidents legislation), of the Limitation Act 1980 shall not apply to the claim by or against the new party; or
(b) the issue of whether those sections apply shall be determined at trial."
79. Those last rules reflect various provisions of the Limitation Act 1980, section 33(1) of which provides that the court has a discretion to disapply sections 11 and 12 :
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—
(a) the provisions of section 11, 11A, 11B] or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."
80. Section 35 of the Limitation Act 1980 provides that:
"35 New claims in pending actions: rules of court.
(1) For the purposes of this Act , any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.
(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either—
(a) the addition or substitution of a new cause of action; or
(b) the addition or substitution of a new party;
and "third party proceedings" means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.
(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor the county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action.
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following—
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and
(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.
(6) The addition or substitution of a new party shall not be regarded for the purposes of subsection (5)(b) above as necessary for the determination of the original action unless either—
(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or
(b) any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.
(7) Subject to subsection (4) above, rules of court may provide for allowing a party to any action to claim relief in a new capacity in respect of a new cause of action notwithstanding that he had no title to make that claim at the date of the commencement of the action.
This subsection shall not be taken as prejudicing the power of rules of court to provide for allowing a party to claim relief in a new capacity without adding or substituting a new cause of action.
(8) Subsections (3) to (7) above shall apply in relation to a new claim made in the course of third party proceedings as if those proceedings were the original action, and subject to such other modifications as may be prescribed by rules of court in any case or class of case."
i) Although the application was made on 23 August 2023 that I should deal with the question of granting permission for addition as if the application was only being made now
ii) In any event that, while the claim form was issued within three years of the date of the index fire, both the application and today is more than three years from the date of the fire; and therefore there is a potential for an impermissible limitation advantage being gained under the relation back provisions of section 35 if new parties, at least if they were not minors either now or at a relevant time, were to be added now
iii) The solution is to make clear that any addition is on the basis that those new parties are deemed only to bring their claims now, and, in so far as those claims include claims for personal injuries, those claims can be made subject to there eventually being granted a section 33 application for extension of the limitation period. Joinder on that sort of basis is permitted by CPR19.6(4)(b) (where a section 33 limitation extension of time argument exists), and also generally by various decisions - most recently Duke of Sussex v Associated Newspapers 2024 EWHC 1208 - which make clear that, notwithstanding the wording of section 35 and the CPR, the court can add parties (or give permission for amendments) to an existing claim expressly on the basis that such additions (or amendments) are deemed for limitation purposes only to have been made (or brought) on some specific date which falls after the date of issue of the claim form.
Approved1.4.2025