CA-2025-001079 & CA-2025-002078 - [2025] EWCA Civ 1262

the court has failed to serve the claim form; or

Finally, there is r.3.9 which sets out the court’s general power to rectify matters where there has been an error of procedure. It is in the following terms:

“(1)

On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances of the case, so as to enable it to deal justly with the application including the need —

(a)

for litigation to be conducted efficiently and at proportionate cost; and;

(b)

to enforce compliance with rules, practice directions and orders;

(2)

An application for relief must be supported by evidence.”

The importance of the commencement of proceedings, by way of a properly served claim form and particulars of claim, has been emphasised in a number of the authorities. In Barton v Wright Hassall LLP [2018] UKSC 12, [2018] 1 WLR 1119, Lord Sumption at [8] drew a distinction between procedural rules and duties, on the one hand, and the provisions in Part 6, on the other. He described Part 6 as the “conditions on which the court will take cognisance of the matter at all”. The full passage reads as follows:

“8.

The Civil Procedure Rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is to be found in CPR 3.9, which confers a power to relieve a litigant from any “sanctions” imposed for failure to comply with a rule, practice direction or court order. These powers are conferred in wholly general terms, although there is a substantial body of case law on the manner in which they should be exercised: see, in particular, Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] 1 WLR 3926 (CA), esp at para 40 (Lord Dyson MR and Vos LJ), Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] 1 WLR 4495 (SC(E)). The short point to be made about them is that there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the courts. CPR rule 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”

The same point was emphasised by Carr LJ (as she then was) in R (Good Law Project Limited) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, [2022] 1 WLR 233, at [83] where she said:

“83 The procedural rules as to service are clear, as was the SSHSC’s nominated address for service. Compliance with the rules is part of the overriding objective in CPR r1.1. The availability of e-mail communications does not lessen the importance of strict compliance, although it may mean that even greater care when it comes to service formalities needs to be taken. It is important to emphasise (again) that valid service of a claim form is what founds the jurisdiction of the court over the defendant. Parties who fail, without good reason, to take reasonable steps to effect valid service, in circumstances where a relevant limitation period is about to expire, expose themselves to the very real risk of losing the right to bring their claim.”