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

Other Considerations

Standing back from Robertson and the principles to be derived from the other authorities, it seems to me that, as a matter of common sense, where a claimant has not served a claim form in time, and no extension of time has been granted by the court, the defendant is not the subject of the court’s jurisdiction. It would be absurd to suggest that, in circumstances where all the default is on the part of the claimant in failing to serve the claim form in time, he or she can obtain some sort of “get out of jail free” card, by suggesting that the proceedings can continue - as if the invalid service had never happened - because the defendant failed to acknowledge that invalid service and/or failed to make an application under Part 11.

Again as a matter of basic intuition, it would seem to be wrong to provide the claimant with a remedy for its own default simply on the basis that the defendant should have pretended that the service of the claim form was valid and so should have served an AoS. Such a scenario was described 20 years ago by Colman J as bizarre, illogical and unfair. I respectfully agree with that.

Importantly, the authorities – and the principles that I have summarised in section 8 above - do not cut across these common sense conclusions. In the present case there was no AoS for the very good reason that the claim form had not been served in time. The claimants sought unsuccessfully to rectify that before the judge. In those circumstances, the defendant was not obliged to pretend that it had been served in time, and serve an AoS in order to be allowed to take the jurisdiction point. Neither was the defendant obliged to serve a Part 11 application. In circumstances where the claimants themselves had unsuccessfully raised the question of service with the court, a separate Part 11 application was redundant and entirely unnecessary. As noted above, Robertson so decides, and is binding authority for that proposition.

Accordingly, for those reasons, I consider that the judge was wrong to conclude that Bellway was required to serve an AoS and/or was required to make an application under Part 11. Bellway was obliged to do neither of those things. Accordingly, the entirety of the second judgment was based on a fundamental misapprehension by the judge.

For these reasons, I concluded that we must allow the appeal and set aside both of the judge’s orders.

I concurred in the decision to dismiss the cross-appeal and to allow the appeal for the reasons given by Coulson LJ.

I also agree with my Lord, Lord Justice Coulson’s reasoning and conclusions on both matters. I particularly endorse his comments at [62] and [63]. The decision of Colman J in Shiblaq makes it plain that a defendant is not obliged to acknowledge service when service has not been validly effected. It would be absurd if the rules of civil procedure operated in such a way as to effectively force a defendant to submit to the jurisdiction of the court despite the fact that the claim form had never been validly served on him, especially if, as in this case, an extension of time for service had been applied for and refused. The decision in Koro does not mandate such a result.