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

Pitalia was then carefully considered recently by Bacon J in Tintometer. Bacon J addressed Pitalia at paras 57-58:

“57.

The principle set out in Hoddinott must, however, now be considered in the light of the recent judgment of the Court of Appeal in Pitalia. In Pitalia the claim form had been served outside the four-month time period specified in CPR r. 7.5. The defendant had filed an acknowledgement of service, ticking the box indicating that it intended to defend the claim, but not the box which indicated that it intended to contest jurisdiction. The defendant had, however, already written to the claimants indicating that it intended to apply to strike out the claim on the grounds of late service of the claim form, and the cover letter filed with the acknowledgement of service also raised the issue of late service and stated an intention to apply to strike out the claim. Three days after the acknowledgement of service was filed, the defendant filed its application to strike out the claim for non-compliance with r. 7.5.

58.

The Court of Appeal considered (at §§34–38) that the failure of the defendant’s solicitors to tick the box on the acknowledgement of service form indicating an intention to contest jurisdiction was not fatal to the strike out application. The critical question was rather whether the strike out application could, by the use of r. 3.10, be treated as having been made under r. 11(1). As to that point, the court held that the failure to make express reference to r. 11(1) in the covering letter accompanying the acknowledgement of service, and in the strike out application itself, was an error capable of rectification under r. 3.10, given that the documents taken together made the defendant’s intentions clear: namely that it was applying to stop the case on the grounds of failure to serve the claim form in time. The failure of those documents to make express reference to r. 11(1) was, the court held, “just the sort of technical error for which CPR r. 3.10 was designed”.”

Bacon J applied the approach in Pitalia to the facts of the case before her at para 59:

“In my judgment the present case is likewise a case in which r. 3.10 can and should be applied. As in Pitalia, the intention to contest jurisdiction was not indicated in the acknowledgement of service, and the strike out application did not specifically refer to r. 11. But the substance of the defendants’ strike out application made clear that their intention was to bring the claim against Pitmans to an end on the grounds (among others) that one or more of the extension of time orders should be set aside, such that the claim was served out of time.”