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

Two days before the appeal hearing, Mr Boch provided what he originally termed a Speaking Note (and which he rightly retitled when it was pointed out that it was, in substance, a further skeleton argument) on the cross-appeal. That took a new point that Google should have, but failed: i) to serve an Acknowledgement of Service (“AoS”); and/or ii) to make an application to challenge jurisdiction under CPR r.11(1). A number of authorities were referred to.

On the face of it, this argument appeared to go beyond the costs issue and to apply directly to Google’s appeal. During the course of his oral submissions on the second day of the appeal, this proved to be the position. In essence, Mr Boch’s new point was that, by failing to serve an AoS, and/or by failing to make an application under r.11(1), Google must be deemed to have accepted the jurisdiction of the court, and cannot therefore take any point about defective service; or that, in some way, Google’s service challenge was a nullity in the absence of a Part 11 application. He went as far as to say that the hearing before the judge, and the judgment – which was of course ultimately in his favour – were both a nullity because of this. Had Mr Boch found a new and knockout point at the last possible moment?

The first hurdle that Mr Boch faces is that he requires permission to amend his grounds of appeal in order to run the new point. Although no such amendments were formulated, any such application was opposed in principle by Google. The opposition is put on the basis of lateness, prejudice and the hopelessness of the argument.

I would refuse any application to amend the grounds of appeal in order to accommodate the new point. There are two broad reasons for that. First, on analysis, I consider that the new point is – in the circumstances of this case – unarguable. I explain the reasons for that from paragraph 60 onwards.

Secondly and in any event, the application is as late as it could possibly be. The argument was only fully developed on the second (and last) morning of the appeal. Google had next to no time to deal with it. It would be contrary to the overriding objective to allow such a potentially significant amendment at beyond the eleventh hour.

During the course of his opposition to the application, Mr Roberts indicated that Google may well be prejudiced as a result of the very late taking of this point. There was no time in the hearing for the prejudice point to be fully developed, but I can well see that prejudice is likely to arise. The new point is likely to require a scrutiny of, and evidence about, precisely what Google said to Mr Robertson and Mr Boch from mid-April 2022 onwards, and what they did during this period, in order to gauge just how realistic it might be to suggest that Google should be deemed to have accepted the court’s jurisdiction (per Pitalia, explained below). The absence of any such evidence is therefore potentially prejudicial to Google.

I now return to my first reason for refusing any application to amend, namely that I consider the new point to be unarguable.

The relevant parts of the CPR for the purposes of this point are Parts 9, 10 and 11. Rule 9.2 provides:

“When particulars of claim are served on a defendant, the defendant may –

(a)

file or serve an admission in accordance with Part 14;

(b)

file a defence in accordance with Part 15,

(or do both, if he admits only part of the claim); or

(c)

file an acknowledgment of service in accordance with Part 10.”

Rule 10.1(3) provides that:

“A defendant must file an acknowledgment of service if –

(a)

they are unable to file a defence within the periods specified in rule 15.4; or

(b)

they wish to dispute the court’s jurisdiction.

(Part 11 sets out the procedure for disputing the court’s jurisdiction).”

Failure to file an AoS within the periods specified in r.10.3 can lead to a default judgment (r.10.2). Any AoS must be filed 14 days after service of the Particulars of Claim (where the defendant is served with a claim form which states the particulars of claim are to follow) or 14 days after service of the claim form in any other case (r.10.3).

Rule 11 provides that:

“(1)

A defendant who wishes to –

(a)

dispute the court’s jurisdiction to try the claim; or

(b)

argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

(2)

A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

(3)

A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

(4)

An application under this rule must –

(a)

be made within 14 days after filing an acknowledgment of service; and

(b)

be supported by evidence.

(5)

If the defendant –

(a)

files an acknowledgment of service; and

(b)

does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim…”

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 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 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 over-turned by this court. Dyson LJ 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.”

A subsequent decision of this court in Pitalia & Anr v NHS England [2023] EWCA Civ 657, [2023] 1 WLR 3584, rightly 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 for relief. 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 CPR 11(1) was a not a serious and significant transgression. It was clear from the surrounding material that jurisdiction was always challenged.

These two authorities did not address 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.”

So the new point raises this issue: is a defendant, faced with what it considers to be defective service, and an application by the claimant (which it has made clear from the outset that it opposes) to rectify that situation, obliged either to serve an AoS or to make an application under r.11? Mr Boch submitted that the answer to both questions was Yes. In my view, for the reasons explored below, the answer to both questions, is No. That is based on a common sense reading of the CPR, and a consideration of the authorities.

As to the CPR, I consider that all the rules concerned with the service of the AoS presuppose that the claim form and/or particulars of claim have been validly served. The CPR build, one upon another, on the assumption that the previous applicable rule has been complied with. The claimant’s obligations as to service are set out in Parts 6 and 7; the defendant’s concomitant obligations are in Parts 9-11. The latter assume that the former have been complied with: otherwise the CPR would be five times as long, having to set out all the potential consequences if a previous step had not been validly taken. So r.9.2 (paragraph 61 above), which is the starting point of the defendant’s obligations, only works if the claim form has been validly served in the first place. There is no obligation to serve an AoS in circumstances where the claim form has not been validly served.

Google were not therefore obliged to serve an AoS in the present case. In consequence, Hoddinott is of no application.

Moreover, also by reference to the CPR, there was no requirement for Google to make an application under r.11. Such an application is required in circumstances where a defendant decides, at the outset, that he wishes to make a challenge to the court’s jurisdiction. If so, he is required to communicate that position to the claimant. Hence the importance of an application under r.11.

But in the particular circumstances of this case, that was unnecessary. Here, Google were responding to Mr Robertson’s own application to rectify his invalid service. Google made it plain from the outset that they opposed that application. They were of course quite entitled to do so. It would have been apparent to everyone that, if Mr Robertson’s application failed, the claim form was not validly served, these proceedings would be a nullity, and the court would have no jurisdiction. Accordingly there was no need for a separate r.11 application; that would have simply duplicated paper, time and costs.

In accordance with the analysis in both Pitalia and Hand Held, I do not consider that Hoddinott is authority for any contrary proposition. It is limited to where an AoS has been served in response to a claim form served in time, and where the absence of any indication of a jurisdictional challenge meant that the presumption of acceptance set out in r.11 must apply. That is simply not this case.

As to the law, I consider that, in at least two other cases cited to the court, the new point that Mr Boch seeks to raise here, that the absence of a r.11 application was fatal to Google’s jurisdiction challenge, was rejected. Thus in Dubai Financial Group LLC v National Private Air Transport Services Co. Limited [2016] EWCA Civ 71, Treacy LJ said that there was considerable force in the point that “the CPR imposes no obligation on a defendant to take any steps in response to invalid or unauthorised service” [29]. In the same case, at [36] McCombe LJ said that the defendant “had simply not been served in accordance with the law and time for an acknowledgment of service had not begun to run against it at all”.

In the earlier first instance case of Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm) the self-same argument, that a defendant who wishes to raise an issue as to the validity of service can only do so by making an application under r.11, was set out by Colman J and described at [20] as “bizarre”. He went on to say:

“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”.

For all these reasons, therefore, I consider that what I have called the new point is unarguable. It does not ride to Mr Robertson’s rescue. The position remains that the claim form was invalidly served and he is not entitled to an extension of time under r.7.6(3), which in turn means that the court has no jurisdiction to consider these proceedings further.