SERVICE OF THE CLAIM FORM CAN BE A PROBLEM FOR DEFENDANTS TOO: ACT PROMPTLY OR YOU HAVE ACCEPTED JURISDICTION

Mediatelegal

Issues relating to service of the claim form are always problematic for claimants . They can, however, be problematic for defendants as well.  . This is demonstrated by the decision of Eder J in Nwoko –v- Oyo State of Nigeria (77/6/2014)*  This issue does not simply relate to service of proceedings abroad. CPR 11 is brought into play in any case where a defendant wishes to challenge service, whether it be an incorrect address or because it is out of time.

THE RULES: CPR 11: TO CHALLENGE SERVICE A DEFENDANT HAS TO DISPUTE THE JURISDICTION OF THE COURT WITHIN 14 DAYS OF ACKNOWLEDGING SERVICE

The decision concerned CPR rule 11(1)-(5):

(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

THE FACTS IN NWOKO

The claimant’s claim form had been served on the defendant outside the jurisdiction after the six month period required for service. The defendant filed an acknowledgement stating an intention to dispute the court’s jurisdiction. The application was not made within 14 days as required by CPR r11(4). The claimant then applied for a retrospective order extending time for service of the claim form.

THE DEFENDANT’S ARGUMENTS

The defendant argued:

  • It was too late to apply for a retrospective order extending time to serve the claim form
  • They should be allowed extra time to serve notice disputing the court’s jurisdiction

THE DECISION: THE DEFENDANT APPLIED TOO LATE AND HAD ACCEPTED THE COURT’S JURISDICTION

The judge found that CPR r11(5) had been engaged and the defendant was to be treated as having accepted the court’s jurisdiction.

  • A claim form served out of time is not a nullity or invalid.
  • An acknowledgement of service filed when the claim form had been served out of time is not void or invalid.
  • CPR r11(5) is engaged when an acknowledgement of service is filed.
  • A defendant who fails to dispute jurisdiction within 14 days after filing the acknowledgement of service is to be treated as having accepted the court’s jurisdiction.
  • The main focus in exercising the court’s discretion should be the delay in making the application disputing jurisdiction.

DISPUTING JURISDICTION WHERE THE CLAIM FORM IS SERVED LATE: CASE LAW CONSIDERED

In Hoddinott -v- Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203 the court considered the application of CPR Part 11 where the claim form has been served out of time.

“26. … Subject to the point discussed at para 28 below, the language of CPR 11 is clear. Paragraph (1) permits a defendant to apply to the court for an order declaring that the court has no jurisdiction to try the claim or that the jurisdiction should not be exercised. Paragraph (2) provides that a defendant who wishes to make such an application “must first file an acknowledgment of service in accordance with Part 10” (emphasis added). Paragraph (4) provides that an application under CPR 11 must be made “within 14 days after filing an acknowledgement of service” (again, emphasis added). Paragraph (5) provides that if the defendant files an acknowledgement of service and does not make an application within the period specified in paragraph (4), “he is to be treated as having accepted that the court has jurisdiction”.

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.

28. In our view, a defendant is fixed with the consequences stated in paragraph (5) if the two stated conditions are satisfied. At first sight, there is an apparent difficulty with the application of this approach to a case (such as the present) where the defendant wishes to argue that the court should not exercise its jurisdiction to try the claim, rather than to dispute the court’s jurisdiction to try the claim. The distinction between the two categories of case seems to have been well understood by the draftsman. It is clearly drawn in paragraphs (1) and (6). But paragraph (3) provides that a defendant who files an acknowledgement of service does not, by doing so, lose any right he may have “to dispute the court’s jurisdiction”; and paragraph (5) provides that if the two conditions in (a) and (b) are satisfied, the defendant is treated as having accepted that the court “has jurisdiction to try the claim”. It may, therefore, be argued (although it was not argued before us) that paragraphs (3) and (5) refer to paragraph (1)(a) but not paragraph (1)(b). We would reject such an argument. CPR 11 must be read as a whole. It is clear that both paragraphs (2) and (4) are referring to applications made under paragraph (1)(a) and (1)(b). Further, paragraph (5) provides that if the defendant does not make “such an application” (ie an application under paragraph (1)(a) or (b)), then the consequences will be as stated. Paragraph (5) cannot mean that, if a defendant does not make an application under paragraph (1)(b), he will be treated as having accepted that the court has jurisdiction to try the claim. It must mean that, if a defendant does not make an application under paragraph (1)(b), he will be treated as having accepted that the court should exercise its jurisdiction to try the claim. In our judgment, the reference to disputing the court’s jurisdiction in paragraph (3) and accepting that the court has jurisdiction in paragraph (5) encompasses both limbs of paragraph (1). The reference to the court’s jurisdiction is shorthand for both the court’s jurisdiction to try the claim and the court’s exercise of its jurisdiction to try the claim.

  1. It follows that, since both of the conditions stated in paragraph (5) were satisfied in this case, the defendant is treated as having accepted that the court should exercise its jurisdiction to try the claim, notwithstanding the late service of the claim form…”

SUMMARY

  • A claim form served out of time is not a nullity or invalid.
  • An acknowledgement of service filed when the claim form had been served out of time is not void or invalid.
  • CPR r11(5) is engaged when an acknowledgement of service is filed.
  • A defendant who fails to dispute jurisdiction within 14 days after filing the acknowledgement of service is to be treated as having accepted the court’s jurisdiction.
  • The main focus in exercising the court’s discretion should be the delay in making the application disputing jurisdiction.

USEFUL POSTS ON SERVICE OF THE CLAIM FORM

*This case reported on Lawtel on the 2nd July 2014. This summary is based on the Lawtel report.