Case number: BL-2024-001074 - [2025] EWHC 2954 (Ch)

CPR 11 so far as relevant provides as follows:-

(1)

A defendant who wishes to—

(a)

dispute the court’s jurisdiction to try the claim; or

(b)

argue that the court should not exercise its jurisdiction,

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

(2)

A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

(3)

A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

(4)

An application under this rule must—

(a)

be made within 14 days after filing an acknowledgment of service; and

(b)

be supported by evidence.

(5)

If the defendant—

(a)

files an acknowledgment of service; and

(b)

does not make such an application within the period specified in paragraph (4),

he is to be treated as having accepted that the court has jurisdiction to try the claim.

The Trustees argue that this rule provides an insuperable problem for Mr. Hill in that he did file an acknowledgment of service but failed within 14 days to file an application disputing the jurisdiction of the court on the basis that he had not been properly served. He is therefore to be treated as having accepted that the court has jurisdiction to try the claim. It was accepted that the court does have power to extend time for such an application retrospectively but there is no application to that effect before me.

The Trustees relied on the Court of Appeal decision in Hoddinott and others v Persimmon Homes (Wessex) Ltd [2008] 1 W.L.R. 806whereby it was held that “jurisdiction” in CPR 11 did not just connote territorial jurisdiction but any case where a party argued that the court did not have jurisdiction to try a claim, including where there were issues, as there were in that case, as to whether the claim had been correctly served.

The facts of Hoddinott are worth considering. The claimants issued a claim form on 22 May 2006, the four-month time limit for service of the claim form expiring on 22 September 2006. On 13 September the claimants applied without notice pursuant to CPR 7.6(2) to extend the time for service on the ground that they were unable to serve particulars of claim in time and wished to serve the claim form with full particulars to promote the chances of the claim being settled. An extension of two months until 22 November was granted. The claimants' solicitors wrote to the defendant on 14 September enclosing a copy of the claim form expressed to be for information purposes only. In October the defendant applied to set aside the order extending time on the ground that the claimants did not have a good reason to obtain an extension of time. The claim form and particulars of claim were served on the defendant on 21 November. On 28 November the defendant filed an acknowledgment of service indicating an intention to defend the claim but not indicating an intention to contest jurisdiction. The District Judge set aside the order extending time for service of the claim form and struck out the claim.

The Court of Appeal held that as the defendant had not contested jurisdiction in the acknowledgment of service form (in itself not fatal) and had failed to make an application under CPR11(1) within 14 days (the application served before the acknowledgment of service applying to set aside the extension of time for service of the claim form not counting for these purposes) it was not open to the defendant to dispute jurisdiction as it was treated as having accepted the jurisdiction of the court.

I find it difficult to see why Hoddinott does not apply in this case. Mr. Hill did file an acknowledgment of service on 13 February 2025. He did not tick the box indicating that he was intending to contest jurisdiction. That in itself was not of course fatal to his ability to challenge the court’s jurisdiction on the grounds that service had not been properly effected but he was, in my view, clearly required to file an application within 14 days if he intended to challenge jurisdiction. He did not do so and indeed made no application within that period that might be regarded as a challenge. There was no indication that there was going to be a challenge to jurisdiction until he issued his application on 6 March 2025.

Mr. Collings sought to distinguish Hoddinott on a number of grounds. His first point was that if he is right on service not having taken place at all (including during the extended period) then the proceedings were a nullity and the court was seised of nothing.

However, it seems to me that the question of whether an originating process has been served is a question of jurisdiction. In Barton v Wright Hassall LLP [2018] 1 W.L.R. 1119, the Supreme Court said after considering the relief from sanctions jurisdiction (at para 8): _

“ CPR r 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.”

Mr. Collings argues that without proper service of the originating process, the defendant is not subjected to the court’s jurisdiction at all. However, it seems to me that in itself is an argument about jurisdiction. It was argued in Pitalia v NHS England [2023] 1 WLR 3584 before the Court of Appeal that Barton had impliedly overruled Hoddinott. The Judge at first instance had rejected that argument and the Court of Appeal upheld him. His reasoning was that although where time for serving a claim form has expired, the claim form is no longer valid, if the defendant has lost the right to challenge the validity of the claim form, it remains valid. It has not expired in the sense that a living person may have died, but can be revived.

In Pitalia the defendant had not ticked the box on the acknowledgment of service stating that it was contesting jurisdiction but the covering letter under which it sent the acknowledgment of service raised the issue of late service. Further, three days after acknowledging service, the defendant brought an application to strike out the claim for non-compliance with CPR 7.5. The Court of Appeal upheld the Judge’s decision to exercise its power under CPR 3.10 to treat the application to strike out as being an application within CPR r11(1). It is notable that the claim form in that case had been served late and so would have been a nullity on Mr. Collings’ argument.

I do not see how Pitalia assists Mr. Hill. It reinforces that there has to be an application made under CPR 11(1) if jurisdiction is to be disputed (including on the basis that there has not been service) once an acknowledgment of service has been filed. Further, in this case there is no application made within 14 days of the acknowledgment of service in respect of which the court could exercise its powers under CPR 3.10.

Mr. Collings further relied on a recent decision of the Court of Appeal in Robertson v Google LLC [2025] EWCA Civ 1262. In that case it was clear that the claimant had not complied with the requirements of service on Google. His counsel raised the issue that Google had failed to serve an acknowledgment of service and had failed to make an application under CPR 11(1). The issue which arose was not one which arises in this case and was whether a defendant faced with defective service is obliged to acknowledge service and make an application under CPR 11(1). Perhaps unsurprisingly, the Court of Appeal held that there was no obligation to serve an acknowledgment of service where the claim form had not been properly served. Mr. Collings relied particularly on para 74 of the judgment of Coulson LJ where he said:

“In accordance with the analysis in both Pitalia and Hand Held I do not consider that Hoddinott is authority for any contrary proposition. It is limited to where an AoS has been served in response to a claim form served in time and where the absence of any indication of a jurisdictional challenge meant that the presumption of acceptance set out in r. 11 must apply. That is simply not this case.”

Insofar as to is suggested that this case confined Hoddinott to cases where the claim form was served in time, it seems to me that is not an accurate summary. Of course, the decision in Robertson was on the basis that there was no acknowledgment of service and therefore no requirement for an application under CPR 11. The reference to a claim served in time is in my view a reference to the fact that there is no requirement that a defendant who has not been properly served in time acknowledge that defective service.

A few days after I heard argument in this matter, the Court of Appeal handed down judgment in Bellway Homes Limited v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347, a case in which the lead judgment was also given by Coulson LJ. That was a case where Bellway Homes Limited had not been properly served but had not acknowledged service and the Court of Appeal rejected the argument that it should have acknowledged service and made an application under CPR 11(1). Attempts to distinguish the case from Google failed.

At paragraph 51 of the judgment Coulson LJ summarised the principles adumbrated in the previous cases as follows:-

(a)

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 jurisdiction) to try the case, that is taken to be a prima facie acceptance of jurisdiction: see Hoddinott at [22] – [27] and Pitalia at [33].

(b)

However, even then, if it is plain that jurisdiction is in issue then, depending on the surrounding circumstances, the failure to tick the relevant box on the AoS form may not be fatal: see Pitalia at [34].

(c)

Neither Hoddinott nor Pitalia are authority for the proposition that, if the defendant denies there has been any effective service and has not served an AoS, the defendant must still use Part 11 to challenge the effectiveness of the service: see Hand Held at [79] [my emphasis].

(d)

Where a court has concluded that a claim form has not been served within time and no extension of time can be granted, a defendant is not obliged to file an AoS: see  Shiblaq , Dubai Financial Group and Robertson .

(e)

The CPR operates on the basis that the defendant's obligation under Parts 9 and 11 are only triggered by the valid service of the claim form: see Robertson at [70]. If a claim form has not been validly served and an extension of time is refused then, if the defendant does not accept the court's jurisdiction, the proceedings that are the subject of the claim form cannot be pursued against that defendant: see Robertson at [69] – [77].

(f)

The reason that cases such as Hoddinott and Koro stress the importance of the defendant making an application under Part 11 is because such an application makes plain to everyone that the defendant is taking a service - and therefore a jurisdiction - point. But such an application is unnecessary if the claimant has already unsuccessfully raised with the court the question of service, and therefore jurisdiction: see Robertson at [73].

That most recent decision makes it abundantly clear in my view that if a defendant files an acknowledgment of service, it must comply with CPR 11. I therefore consider that what has happened in this case falls squarely within Hoddinott. Mr. Hill acknowledged service and failed to make an application under CPR 11(1). In the circumstances he is treated as accepting that the court has jurisdiction to hear the claim. This is precisely the situation the court in Hoddinott was envisaging where a party had given no indication of a challenge to jurisdiction, had acknowledged service and made no application under CPR 11(1) within the requisite 14 days.

In the circumstances, there is no requirement for me to consider the other matters raised but in case it may assist if this matter goes further and in deference to the very full arguments I heard on other points, I will deal with them.