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

The Authorities

The rights and obligations of the parties in circumstances where a claimant has failed to serve a claim form properly and/or in time are dealt with in a number of authorities. They are largely fact-specific although, having set them out in this section, I attempt to summarise the principles that can be derived from them in Section 8 below.

The point in issue on this appeal arises out of the potential interplay between defective service by the claimants, on the one hand, and a defendant’s consequential rights and obligations, on the other. If a defendant avers that the claim form had not been properly served, then he or she is raising a jurisdictional issue (see Hoddinott, cited below). The question is whether, in such circumstances, the defendant is required, notwithstanding the defective service, to take positive steps, such as to file an AoS and/or issue an application under Part 11, and whether, if he does not do so, he is deemed to have accepted the court’s jurisdiction.

In Shiblaq v Sadikoglu [2004] EWHC 1890, a claimant had failed to effect valid service out of the jurisdiction. Despite that, in the absence of an AoS from the defendant, he went on to obtain judgment in default. The claimant argued [14] that, if the defendant had wanted to raise an issue about the validity of service, then it could only do so by making an application under Part 11. It was said that the failure so to do meant that the claimant was entitled to judgment in default. Colman J rejected that argument, describing it as “bizarre”. He went on to say at [20]:

“The giving of judgment for lack of acknowledgment that a procedural step has been taken which has, in truth, never or has never effectively been taken would not appeal to many as a logical or, indeed, a fair feature of a system of civil procedure”.

In Hoddinott v Persimmon Homes [2007] EWCA Civ 1203, [2008] 1 WLR 806 (CA) the claimants obtained, ex parte, an extension of time for service of the claim form. They sent a copy of the claim form and particulars of claim for information purposes to the defendant during the period of the extension. Subsequently, the defendant applied to set aside the extension order on the basis that the claimants did not have a good reason for the delay. When the claim form and particulars of claim were served on the defendant in accordance with the court order, the defendant filed an AoS indicating an intention to defend the claim but not indicating that it intended to contest jurisdiction. The order for an extension was subsequently set aside on the basis that it was unjustified. The claim was then struck out, the District Judge finding that the defendant did not need to make an application to challenge the court’s jurisdiction in order to apply for the extension of time to be set aside.

That decision was overturned by this court. Dyson LJ (as he then was) found that the defendant had accepted jurisdiction, despite the setting aside of the extension order. He said that, on a proper reading of r.11(5), a defendant who filed an AoS but did not make an application under r.11(1) within 14 days to dispute the jurisdiction was treated as having accepted the court’s jurisdiction to try the claim. In particular, he said that:

“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…

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.”

In Dubai Financial Group LLC v National Private Air Transport Services Co Ltd [2016] EWCA CIV 71, the court was dealing with the extent to which there were any obligations on a defendant in circumstances where the original service had been invalid, but where it had been retrospectively validated by the judge. The judge had failed to go on and indicate when time for the service of an AoS expired. Default judgment was obtained. This court set the default judgment aside. At [29], Treacy LJ said there was considerable force in the point that the CPR impose no obligation on a defendant to take any steps in response to invalid or unauthorised service. He noted at [32] that default judgment was not available when the relevant time for serving an AoS had not expired. Where no such time had been identified following retrospective validation of the original defective service, it could not be said that time had expired. At [36], McCombe LJ said that the defendant “had simply not being served in accordance with the law and time for an acknowledgment of service had not begun to run against it at all”. At [40] he said that “the time for acknowledgment of service had not expired, because none had ever become applicable”.

In his judgment in Pitalia & Anr v NHS England [2023] EWCA Civ 657, [2023] 1 WLR 3584, Bean LJ (to my mind, correctly) described Hoddinott at [33] as authority for the (relatively limited) proposition 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 acceptance of jurisdiction”. In Pitalia, the claim form was not served within the 4 month period. The defendant’s solicitors replied by letter to say that the claim form had been served late and they intended to apply to strike out the claim. The subsequent AoS did not tick the box as to jurisdiction, although it did tick the box that all claims would be defended. This court concluded that, in all the circumstances, the failure to tick the box indicating an intention to contest jurisdiction was not fatal to the defendant’s application to strike out the claim. It was not the case, given that errors in issuing and serving originating process were in a class of their own, that the same procedural rigour should be applied to the defendant as must be applied to the claimants. The failure to make express reference to r.11(1) was not a serious and significant transgression. It was clear from the surrounding material that jurisdiction was always challenged.

The difference in outcome between Hoddinott, on the one hand, and Pitalia on the other arose because, in the latter case, it was always apparent that jurisdiction was in issue and the court was content to treat the application to strike out as an application to dispute the jurisdiction under Part 11.

Neither of these two authorities addressed the position where no AoS was served at all. Nugee LJ (sitting at first instance) considered that issue, albeit obiter, in Hand Held Products Inc & Anr v Zebra Technologies Europe Limited & Anr [2022] EWHC 640 (Ch). He said at [78] that Hoddinott was authority for the proposition that if a defendant had been served and acknowledged service, it must make an application under r.11(4) to set aside the service. However he went on to say:

“79.

It is not obvious to me that Hoddinott stands as authority for the wider proposition that if the claimant claims to have served the defendant and the defendant denies that there has been any effective service, the defendant must still use Part 11 to challenge the effectiveness of the service. It is possible that that follows, but I do not think it necessarily follows. For example suppose a claimant serves not at the defendant's address but at his neighbour's. The defendant may be passed the claim form by his neighbour and may therefore be in a position to invoke Part 11 (although it is to be noted that before applying under CPR r 11(4) a defendant must by CPR r 11(2) first file an acknowledgment of service and it seems a bit odd for a defendant to acknowledge service when his contention is that there has been no service at all). But the neighbour may never tell the defendant, and the first the defendant may know of the proceedings is an attempt by the claimant to enforce a default judgment. Must the defendant then use Part 11 to challenge the default judgment? I do not regard that as obvious. The reasoning of Dyson LJ in Hoddinott is that where a defendant has acknowledged service and has not brought an application under CPR r 11(4) within 14 days thereafter, the consequences in CPR r 11(5) follow. But that does not necessarily apply where a defendant has not acknowledged service. The logic of Dyson LJ's judgment does not compel the conclusion that a defendant who has not acknowledged service can only raise the issue whether service has been effected at all by using Part 11.”

A case on which the judge in the present case placed considerable reliance was R (Koro) v County Court at Central London [2024] EWCA 94, where the judgment was given by Stuart-Smith LJ. The tortuous procedural history more than justifies the characterisation of the case as a procedural dog’s breakfast. Happily, that history does not need to be set out here. For present purposes, it is only necessary to note that the claimant was entitled to an in-person hearing of his application to set aside an order striking out his claim [24]. After lengthy delays and errors by the court, that hearing was fixed for 27 May 2022 [40]. However, at that hearing, the defendant attended by counsel and, for the first time, submitted that because of alleged errors in service nearly two years before, the claim was a nullity and that the court had no jurisdiction to hear it. The judge acceded to that application. The claimant appealed.

This court was first concerned with the nullity point, and whether proceedings which had been issued continued to exist, whether or not they had been properly served. At [64] Stuart-Smith LJ concluded that such proceedings do not cease to exist merely because they had not been served in time. He therefore concluded that they were not a nullity.

The main concern, however was the way in which the hearing before the judge had been hijacked by the defendant, who raised the point, unheralded at any point during the procedural skirmishes beforehand, that the court had no jurisdiction to continue to hear the claim. Stuart-Smith LJ said at [65] – [68] that the procedure for disputing the court’s jurisdiction was laid down by Part 11, and the defendant could not bypass that so as to hijack the hearing before the judge. He did not, however, find that the absence of a Part 11 application was itself fatal; instead he set a procedural course for enabling the various disputes between the parties – including the jurisdiction dispute - to be resolved.

Koro was therefore a case where the question of the validity of the service had been raised by the defendant (months, if not, years out of time), rather than – as here - by the claimant almost immediately after the late service of the claim form. In those circumstances, I would respectfully agree with Stuart-Smith LJ: that the only procedure for the defendant in Koro to follow was Part 11. That was the way in which the defendant could fairly raise – for the first time - the question of jurisdiction with both the claimant and with the court. But that is far removed from the facts of the present case, where the defendant had no need to adopt that course because the question of service, and therefore jurisdiction, had been expressly raised by the claimant within a week of the late service of the claim form (see paragraph 10 above).

Finally, that leaves Robertson, to which I have already referred. There, the court considered all of the authorities noted above save for Koro. The court’s conclusions on the AoS/Part 11 point were set out in my judgment at [70]–[74] as follows:

I should say in passing, that although Koro was not cited to the court in Robertson, the reasoning at [72]-[73] above makes plain why, on its facts, Koro was decided as it was, but why it had no bearing on the situation in Robertson.