KB-2025-001929 - [2025] EWHC 2966 (KB)

In Pitalia, the Court of Appeal examined Hoddinott and offered guidance on the approach to procedural errors that are technical rather than amounting to substantive flaws. The specific facts of Pitalia are of limited relevance and for that reason touched on only briefly by the Court of Appeal. It was a dispute between two doctors and the NHS about certain contractual arrangements. The claimants’ claim form was served after the requisite four months and was struck out. The significance of the Court of Appeal’s decision for Part 11 purposes is that the defendant the NHS failed to make specific reference to Part 11 in seeking to strike out the claim form, and failed to tick the box on the acknowledgement of service disputing jurisdiction. The question was whether in light of Hoddinott the NHS’s error could be corrected under CPR 3.10. That provides:

“General power of the court to rectify matters where there has been an error of procedure

3.10

Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a)

the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b)

the court may make an order to remedy the error.”

It repays setting down the relevant passage in the judgment of Bean LJ:

“33.

Hoddinott lays down 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 an acceptance of jurisdiction. Whatever one might think of Hoddinott, the decision is binding on us, and like the judge I do not consider that it has been impliedly overruled by Barton. The judge was also right to reject the argument, based on the use of the word “expired” in Barton, that there is an analogy between the expiry of a claim form and the death of a living creature. Plainly in some circumstances an expired claim form can be revived: see CPR 7.6(3).

34.

I agree with the judge that the failure of the Defendant’s solicitors, when completing the acknowledgment of service form, to tick the box indicating an intention to contest jurisdiction is not fatal to their application for relief. Even if the box had been ticked an application would still have been required to be made within 14 days. CPR 11(1) does not say that a box on a form must be ticked: it says that an application must be made. As the judge put it, a tick in the box is neither necessary nor sufficient as a basis for challenging jurisdiction.

35.

The critical question, therefore, is whether the Defendant’s application of 24 January 2020 can, by the use of CPR 3.10, be treated as having been made under CPR 11(1). I do not accept Mr Trotman’s argument that such rectification would offend against the Vinos principle. CPR 11(1) does not contain clear mandatory wording equivalent to that laid down by CPR 7.6 (3) that a retrospective extension of time may be granted “only if” certain conditions are fulfilled.

36.

The failure to make express reference to CPR 11(1) in the letter of 21 January 2020 or the application of 24 January 2020 was in my view an error capable of rectification under CPR 3.10. The three documents - the acknowledgment of service, the covering letter and the application to strike out supported by witness statements – together made the Defendant’s intentions clear. This was in substance an application to stop the case on the grounds that the Claimants had failed to serve the claim form in time. The case is much closer to Steele v Mooney than to Vinos or Hoddinott.”