CA-2025-000771 - [2025] EWCA Civ 1347

Can Robertson Be Distinguished?

Mr Sawtell confirmed during his oral submissions that he did not say that Robertson was wrongly decided or was in any way per incuriam. His argument, by reference to a lengthy passage at [30] – [32] of the second judgment of the judge, was that there was a distinction to be drawn between a failure to serve a claim form using the right method, and a failure to serve a claim form on time. His argument was that Robertson fell into the former category, whilst this case fell into the latter category.

This was important because he said, by reference to r.6.14, that even if it was served late, a claim form that had been served was deemed to be served on the second business day after completion of the relevant step, and therefore obliged a defendant to file an AoS and, if appropriate, make an application under Part 11. In this way, he not only distinguished between service by the wrong method, and service that was ‘merely’ late, but he also submitted that Robertson was in the ‘wrong method’ category, and so was not binding on this court. Again, attractively though these submissions were advanced, I consider that they must be rejected.

First, I consider that the submission is based on a misreading of the rules. The full text of r.6.14 is as follows:

“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).”

It seems to me that, on a proper interpretation of that rule, there is no question of service of the claim form having been deemed to have been valid even if it was late, so that somehow that default did not matter. Deemed service occurs on the second business day after completion if the relevant step under r.7.5(1) has been taken. If that step was not taken (because the mode of service was defective or service was effected late) then the deeming provision does not apply. Any other conclusion would mean that a failure to serve on time would not matter; that the time limits in r.7.5 could be ignored with impunity; and that a defendant would be forced to engage in proceedings that had not been validly commenced.

Secondly, as a matter of principle, it is usually unprofitable to distinguish between the failure to take a relevant procedural step in time, and the taking of a relevant step timeously but defectively. Both Vinos v Marks and Spencer PLC [2001] 3 All ER 784 (CA) and particularly Ideal Shopping Direct Limited v Mastercard Inc [2022] EWCA Civ 14, [2022] 1 WLR 1541 at [145] – [150], make that point. In any event, in disputes about service, it will often be the case that the relevant defaults are in respect of both the method and time of service.

This case is a good example of that. It might be said that the claimants used the wrong method of service because they left the claim form out for collection by the DX service rather than leaving it with the DX service. In consequence it was not served in time. It is artificial to distinguish between those two defaults, and even more so to say that one default would lead to the court having jurisdiction over the proceedings against the defendant, whilst the other would not. Mr Sawtell realistically conceded that, if there was no reason to distinguish between the two types of default, he could not distinguish Robertson and the appeal should be allowed.

Thirdly, it was no part of the reasoning in Robertson that it was a ‘wrong method’ case, or that there was any distinction to be drawn between such a default, on the one hand, and late service, on the other. On its facts, Robertson was also a case about both wrong method and late service. Again, therefore, it cannot be distinguished.

Fourthly, I acknowledged in Robertson that there will be many cases of late service in which a defendant will have to go down the Part 11 route. An example of this is provided by Koro itself: the defendant could not be allowed to raise a jurisdictional issue for the very first time at a hearing that was intended to deal with something else, without having made an application under Part 11.

But that is not this case. And, again, it was not the position in Robertson either. In both cases, the question of service - and therefore jurisdiction - was before the court within days of the defective service, because the claimant was rightly concerned that service may have been invalid, and was therefore seeking the necessary relief from the court. The issue of jurisdiction was therefore front and centre before the judge at first instance in both Robertson and the present case. As Mr Sawtell properly accepted, in the present case he could have had no complaint now if Bellway had simply served an AoS with the jurisdiction challenge box ticked. Nothing else was required because the claimants were always aware that Bellway challenged the validity of service, and therefore jurisdiction. In those circumstances, as I said in Robertson, a separate Part 11 application would simply have duplicated paper, time, and costs and would have served no practical purpose: the issue of jurisdiction was already in play.

For these reasons, it seems to me that Robertson is entirely on all fours with the appeal in the present dispute. It is binding on us, and it means that the appeal must succeed.