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

The Judgment Below

I have identified above the judge’s factual findings in his first judgment. As a result of those findings, he concluded at [124] that the claimants had failed to show that they had served the claim form by the date and time set out in the November order. The judge was then obliged to work through three different arguments advanced by the claimants as to how and why they were entitled to avoid the consequences of that default.

First, the claimants argued that time for service had been extended by agreement until 8 June 2023. At [125]-[133] the judge concluded that there was no such agreement. He therefore concluded at [134] that the claimants had failed to comply with CPR 7.5, and refused to grant the declaration sought by the claimants to the effect that the claim form had been validly served.

Secondly, at [135]-[143] the judge refused to grant the claimants relief from sanctions. The judge made it clear that the relevant jurisdiction was CPR 7.6 and that CPR 3.9 and CPR 3.10 “cannot be used to evade the jurisdictional limits of CPR 7.6”: see [139]. The judge noted that it had not been and could not be suggested that the claimants had taken all reasonable steps to comply with CPR 7.5: see [140]. Thus at [144] he refused the claimants relief from sanctions. They were not entitled to an extension of time.

Just pausing there, although it was not an issue in this appeal, it is appropriate to confirm the correctness of the judge’s approach to this issue. If a claim form has not been served in time, as the judge said, the only remedy for a claimant is to seek an extension of time pursuant to r.7.6. The relief from sanctions regime under r.3.9 and r.3.10 is irrelevant: see Barton v Wright Hassall LLP [2018] UKSC 12, [2018] 1 WLR 1119 at [8]; R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, [2022] 1 WLR 233, at [83]; and Robertson at [36] – [52].

Thirdly, the claimants had a further argument to the effect that, even though service of the claim form had been out of time, it had taken place later in April 2023 and, because of what they said were subsequent omissions by Bellway, the proceedings against them should be permitted to continue. This was, they said, the result of Bellway’s failure to file an Acknowledgment of Service (“AoS”) and/or their failure to make a CPR Part 11 application challenging the court’s jurisdiction. The judge concluded as a matter of law that that submission was correct: see [158]. He said that Bellway were obliged to do both. Although he said that Bellway could apply to serve an AoS and/or make an application under Part 11 out of time, in his second judgment ([2025] EWHC 772 (KB)), dated 13 January 2025, he declined both applications. Of course, if he had been wrong to accede to the claimants’ submissions as to Bellway’s obligation to file an AoS and/or make a separate r.11 application, the second judgment was otiose.