SECOND CLAIM FORM CASE OF THE YEAR: SERVICE ABROAD, ANTARCTICA AND CPR PART 11
The judgment of Master Thornett in Lunn v Antarctic Logistics Centre International (Pty) Ltd [2023] EWHC 2856 (KB) relates to a defendant disputing jurisdiction. It was held that it was open to the defendant to dispute jurisdiction. That application has still to be heard.
THE CASE
The claimant brought proceedings in relation to an accident that occurred in Antarctica, the defendants are based abroad. Proceedings were issued against five defendants, but the claimant continued against just one, based in South Africa.
The claimant obtained an extension of time for service of the claim form, together with permission to serve out.
When the claimant served proceedings it failed to serve a copy of the evidence in support.
The defendant acknowledged service and used From N9 to make clear that it intended to contest jurisdiction.
THE HEARING
There were a number of issues:
- Did the claim form have to be served in four months or six months?
- Was the claimant’s application made in time?
- Did the defendant have to make an application under CPR Part 11 given there was service abroad and the wording of the extension?
- Had the defendant made the correct application?
THE PRELIMINARY POINTS
(1) Whether the application for extension of time for service of the Claim Form was made outside a four month period of validity, such that permission ought not to have been given on 3 August 2021 as a matter of principle. The Claimant had neither acknowledged the Application was being made out of time nor put before the court evidence to satisfy the court that the higher threshold provisions under CPR 7.6(3) were satisfied;
(2) The procedural status of the Defendant’s 14 February 2023 Application in seeking the relief it does;
(3) Whether the Defendant has sought to challenge jurisdiction in time.
WAS THE TIME FOR SERVICE FOUR MONTHS OR SIX MONTHS
The first point was whether the claimant had made the application for an extension in time. The time for serving a claim form is six months when service is to take place abroad. The claimant made the application for an extension within the six month period, but outside the four month period. The defendant argued that the fact that the claim form was marked “not for service out of the jurisdiction” meant that service should have taken place within four months and the claimant’s application was made out of time. This argument was not accepted by the Master.
4.1 Miss Crowther on behalf of the Defendant submits that the effect of the Claim Form having been marked “Not for Service Out of the Jurisdiction” means the Claim Form is therefore to be treated as for service within the jurisdiction and accordingly must be served within 4 months, unless there has been an Order extending time for compliance within the period specified by rule 7.5 (rule 7.6(2)(a)). She submits that the address for service given is not determinative of the length of validity of the Claim Form in circumstances where the “Not for Service Out of the Jurisdiction” marking appears.
CPR 7.5 provides:
(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.
[Table]
(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.
4.2 The Defendant submits that the clear effect of rule 7.5 is to present a binary test. A Claim Form is either for service within the jurisdiction or for service out of the jurisdiction. Therefore, if the court has marked the Claim Form as “Not for service out of the jurisdiction” it has by simple deduction to be a Claim Form for service within.
4.3 In consequence, therefore, because the Claimant did not apply to extend time for service of the Claim Form until 14.07.21, the four month period for its service had by then already expired (by 11 June 2021). As is well known, the predicament of a party that seeks to extend time of a Claim Form outside the four-month period is limited to the strict provisions of CPR 7.6(3). It is said that the cannot demonstrate that (a) he has acted promptly in making the application and (b) and taken all reasonable steps to serve the claim form within the 4-month period.
4.4 The Defendant relies upon the case of American Leisure Group Ltd v Garrard [2014] EWCH 2101 (Ch) in support of the proposition that where the address for service is outside the jurisdiction, but no permission to serve has been obtained, the Claim Form is only for service in the jurisdiction and the four-month time limit applies. Further, in National Bank of Greece SA v Outhwaite [2001] CP Rep 69 it was held that the effect of giving permission to serve outside the jurisdiction was to breathe new life into a claim form and this was always an important consideration when determining whether permission to serve out of the jurisdiction ought to be given. Accordingly, the Defendant submits, it should only be in a rare case where the effect of an order would be to set aside the general rule of four-month validity after its expiry should be granted if there has not been compliance with CPR 7.6(3).
4.5 Mr Loxton on behalf of the Claimant did not accept this interpretation as a matter of principle but also argued it was not properly reserved in the Defendant’s 14 February 2023 Application to be relied upon anyway because it first appeared only upon receipt of Miss Crowther’s skeleton argument. It was for this reason that I permitted Mr Loxton to conclude his response to the “four month” point by relying upon a written submission to be filed and served following conclusion of the hearing (and with like permission to reply from the Defendant).
4.6 In his concluding submissions, Mr Loxton’s central point is that the Defendant’s interpretation is both against authority on that specific point in Anderton v Clywd CC [2002] EWCA Civ 933, as applied in Nesheim v Kosa [2006] EWHC 2710 (Ch), as well as constituting a misreading of American Leisure Group Ltd v Garrard [2014] EWHC 2101 (Ch).
4.7 Anderton was a combined appeal in which included the appeal in Cummins v Shell International. In Cummins, the claimant had issued a claim against two defendants, one in this jurisdiction and the other in Singapore. The Claim Form had been marked “Not for service out of the jurisdiction”. The claimant subsequently applied for and obtained permission from a Master to serve out of the jurisdiction but this was reversed by the High Court judge who held that an application to serve out of the jurisdiction (where not automatically permitted by the rules) must be made within four months of the date of issue.
The Court of Appeal allowed the appeal on this point, Lord Justice Mummery holding that:
97. Our conclusion on the construction of the relevant provisions of the CPR is that, on their natural and ordinary meaning, the discretion to grant permission to serve a claim form out of the jurisdiction is not subject to any express or implied requirement or condition
1) that the application must be made before the end of the period of 4 months from the issue of a claim form marked “not for service out of the jurisdiction”; or that
2) different discretionary criteria apply to an application for such permission made after the end of the period of 4 months from the issue of the claim form than apply to an application made within that period ; or that
3) the criteria set out in rule 7.6(3) apply directly or indirectly to the exercise of the discretion, whether the application is made before or after the end of the period of 4 months from the issue of such a claim form.
98. The relevant provisions governing permission to serve a claim form out of the jurisdiction are in the “Special Provisions” in Section III of Part 6 (see also rule 6.5(1) ), not in the general provisions in Part 7 , save for the time for service of the claim form out of the jurisdiction in 7.5(3), as to which no extension of time was required, as the 6 month period for such service had not expired. In those circumstances it would require clear words to restrict, in the manner contended for by Mr Young, the exercise of the discretion to grant permission to serve the claim form out of the jurisdiction. There are no such restrictive words in Part 6 or Part 7 CPR nor are there any strong contextual indicators that the discretion was intended to be so circumscribed….
4.8 In the case of Nesheim v Kosa [2006] EWHC 2710 (Ch), nine days after the expiry of the four month period in CPR 7.5(1), the claimants had the Claim Form resealed for service out of the jurisdiction. The defendant in that case raised the same point that because in its original form as issued the Claim Form was “not for service out of the jurisdiction”, the four-month period applied and the application to extend after that period was ineffective. Briggs J described this point as ‘plainly wrong’ [Para 36] and cited the judgment of the Court of Appeal in Anderton.
4.9 On the basis of such clear authority affirming the Claimant’s submission, there seems little more to be said save that I agree with the Claimant’s submission that the American Leisure case does not enable a different or distinguishing approach of the kind submitted by the Defendant. The feature in that case was that the Claim Form featured two addresses for first defendant, one in the jurisdiction and one in Switzerland. It had been marked “Not for Service”. The first defendant had not been served at his English address in the four-month period. The claimant obtained permission to serve three other defendants out of the jurisdiction, in response to which order solicitors for the first defendant said they had instructions to accept service. However, upon service the first defendant applied for a declaration that the claim form was out of time. The claimant argued that because one of the addresses for the first defendant was in Switzerland then the Claim Form was to be regarded as one to be served out of the jurisdiction and so could be validly effected within six months. Richards J was clear at [19] as to the clear distinction between the provisions for service of a Claim Form respectively within the jurisdiction and out of the jurisdiction. Service out of the jurisdiction is subject to the quite separate provisions within section IV of Part 6. A Claim Form accordingly can only be served in accordance with section IV “if it is served out of the jurisdiction”. Accordingly, he rejected the submission that contemplation of service at an address out of the jurisdiction had any bearing on the feature of attempted service at different address in the jurisdiction. Service on the London address was ineffectively attempted because it was out of the four month period applicable for service at that address.
4.10 In this case, the Claim Form has always been from the time of issue proposed to be served on defendants out of the jurisdiction. There is no dual character or choice as to addresses within or without, as there was in American Leisure. It is, in terms of the rule 7.5(2) distinction, a claim to be served out of the jurisdiction. I am satisfied that that case provides no support for the proposition that marking “Not for Service out of the jurisdiction” is anything more (nor indeed anything less) than procedural confirmation that permission of the court will still be required because grounds of entitlement to serve out of the jurisdiction had not been presented at issue, per CPR 6.34.
4.11 Aside of the question whether the claim is properly brought in this jurisdiction, I am satisfied that the court was therefore entitled to extend time for service of the Claim Form.
AN APPLICATION UNDER CPR 11
The next issue was whether the Defendant’s application was properly formulated and made in time. The Master held that, on the facts of this case it was made in time. The claimant’s failure to serve the evidence in support of the application was a factor to be taken into account. The Defendant’s application to dispute jurisdiction was allowed to proceed.
5.1 There is some overlap between these two points. The second draws upon the Claimant’s submission that the 14 February 2023 Application does not appear to seek to set aside my 3 August 2021 Order and dispute jurisdiction but is simply an application to extend time to do so. By way of the third point, the Claimant further submits there is no application that expressly seeks to set and/or dispute jurisdiction consequent upon any extension of time as may have come to have been either agreed or impliedly granted. In short, the Defendant in breach of the strict requirements of CPR 11 “Procedure for disputing the court’s jurisdiction”.
5.2 I am clear that the second point has no real substance. It seems to me on a simple reading of the N244 that the Defendant seeks – as part of the same Application – directions respectively for (i) an extension of time for the Applicant to conclude its application for a direction that the 3 August 2021 Order should be set aside; (ii) that purported service of the Claim Form be set aside and (iii) a declaration that this court has no jurisdiction in respect of the claim. Critically, the N244 refers to and annexes separate draft Orders to support the distinction between being granted an extension and then for declarations. It is clear that the narratives at Section 3 and 10 condescend not just to reasoning why further time is required but also the basis on which jurisdiction will be challenged. At least in terms of the drafting of this Application, I do not accept the Defendant is limited merely to pursuing a stay or extension of time in order to formulate an Application that has never been issued.
5.3 Treating the 14 February 2023 Application as challenging the Claimant’s procedural ability to seek an extension of time for service of the Claim Form (that is, irrespective of whether permission should also have been granted to serve out of the jurisdiction), the Defendant was therefore entitled at least to argue this point even if, for the reasons discussed above, it was an argument contrary to authority.
5.4 The third point is the more complex, however: the very date of the Defendant’s Application in going further to challenge jurisdiction. A copy of the sealed 29 July 2021 Order and the Claim form with Particulars of Claim were served on the Defendant on 24 August 2022. A Response Pack was also served on the Defendant on 24 August 2022, stating that CPR 6.35 and 6.37(5) were relevant ‘if served outside the jurisdiction’. Focusing upon and isolating the 14 February 2023 Application as (as I find it also to be) an application under CPR Pt 11, the Claimant submits that challenge was significantly out of time. Further the Defendant’s Acknowledgment of Service on 1 February 2023 was also out of time.
5.5 Because the 29 July 2021 permitted the Defendant to ‘apply within 28 days of service of a copy of the sealed Order to suspend, vary or revoke the same’, the Claimant argues that the Application should have been made by 22 September 2022. The feature of the 14 February 2023 Application reserving its position owing to missing information was not an obvious justification for it still being late.
5.6 The Claimant further submits that, on a strict interpretation of the rules, the time period provided by the 29 July 2021 Order in fact was generous. CPR 11.2 mandates that a Defendant ‘who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10’. The general rule in Pt 10, at CPR 10.3(1)(b), is that the period for filing an acknowledgement of service is 14 days after the service of the claim form. This is, however, subject to CPR 10.3(2)(c) which provides guidance on the relevant period where the Order grants permission to serve a claim form out of the jurisdiction. CPR 10.3(2)(c) guides the parties to CPR 6.37(5) which states that the period for filing an Acknowledgment of Service is specified in PD6B. Pursuant to the table at Direction 7.1. in PD6B, ‘the period for responding is 7 days less than the number of days listed in the Table’. The number of days listed in the Table for South Africa is 22 which, minus the 7 days, meant the Defendant had 15 days from receiving the Court Order and accompanying documents in which to file an acknowledgement of service.
5.7 On this analysis, the Defendant was required to file an Acknowledgement by 8 September 2022 aside of the slightly longer period afforded to challenge the Order.
5.8 The strict consequences of a failure of a defendant to challenge jurisdiction in time are set out in CPR Part 11, the relevant parts of which provide:
‘Procedure for disputing the court’s jurisdiction
11
(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.’
5.9 The Claimant relies upon Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 where the Court of Appeal held that a defendant is treated as having accepted that the court should deal with this claim, even if the time for service of the claim form should not have been extended, if the defendant had not complied with the requirements of CPR Part 11. Whilst I note that the failure in Hoddinott was to comply with CPR 11(4), the following part of the judgment of Dyson LJ obviously applies where there is a failure to comply with CPR 11(2):
’26. … the language of CPR r 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 r 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 sub-paragraphs (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 r 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 r 11(1) nor is it an application made within 14 days after the filing of the acknowledgment of service….
28. In our view, a defendant is fixed with the consequences stated in paragraph (5) if the two stated conditions are satisfied….’
The Court of Appeal concluded at [Para 60] that if the conditions of CPR 11(5) are satisfied, a defendant is treated as having accepted that the court should deal with this claim even if the time for service of the claim form should not have been extended.
-
- As well as pointing out that the Claimant had not taken this point before the opportunity to submit written submissions on the “Not for service out” point, the Defendant argues that none of the above analysis has any application if the procedure for service of a Claim Form to be served out of the jurisdiction have not correctly been followed by a claimant. The CPR does not provide a default date for filing an acknowledgement of service in service out cases but instead prescribes at CPR 6.37(5) a mandatory direction that the court will specify the time periods for response. In the absence of that direction, there can be no breach of the rules as to acknowledgment or jurisdictional challenge. There is accordingly no basis for asserting delay by the Defendant in its CPR Part 11 application if the Claimant had not correctly followed the provisions for service in the first place.
6.1 The Defendant here repeats its position set out in the 14 February 2023 Application that both the form and sufficiency of the materials provided upon service of the 03 August 2021 Order was insufficient and so undermines the proposition that was a straightforward responsibility passed to the Defendant to respond within time if wishing to object to jurisdiction. The witness statements of the Claimant and Mr Barrett in support of the Claimant’s application for permission to serve the claim form outside the jurisdiction and associated extension of time were not served on the Defendant. None of the materials relating to the 15 July 2021 Application were served and indeed, as stated, the Defendant remained until shortly before the hearing without a copy of that Application or its supporting evidence. The wording of the 3 August 2021 Order was wrong. The Defendant says such omissions or errors either absolutely entitle the Defendant to challenge without procedural restriction of time or at least should be taken into account to the extent the court has a discretion.
The Defendant also goes on to observe that, once eventually provided, Mr Barrett’s first Witness Statement contains several material factual omissions or errors. These points are, however, more relevant to the question of jurisdiction than the procedural facility to challenge jurisdiction.
6.2 CPR 6.37(5) provides that:
(5) Where the court gives permission to serve a claim form out of the jurisdiction –
(a) it will specify the periods within which the defendant may –
(i) file an acknowledgment of service;
(ii) file or serve an admission;
(iii) file a defence; or
(iv) file any other response or document required by a rule in another Part, any other enactment or a practice direction; and
(b) it may give directions about the method of service-
(i) give directions about the method of service; and
(ii) give permission for other documents in the proceedings to be served out of the jurisdiction.
(The periods referred to in paragraphs (5)(a)(i), (ii) and (iii) are those specified in the Table in Practice Direction 6B.)
6.3 Having regard to the provision of r.6.37(5), I agree and am satisfied that the 03 August 2021 Order was defective. It did not provide for the Defendant to file an acknowledgement of service, nor any date by which it needed to be done. I agree with the Defendant’s submission that, it follows, it is not for the Claimant to argue that the Defendant should have interpreted this defective order having regard to the Practice Direction 6B table. The sentence in brackets at the end of r.6.37 plainly defines what periods are to be specified by the court in the order. If no periods are provided, then the order is deficient and it cannot be for the respondent defendant to make assumptions.
6.4 I agree with and accept the Defendant’s submission that, owing to the very stringency of the CPR 11 provisions for challenging jurisdiction and their consequence, as emphasised by the Claimant in referring to Hoddinott v Persimmon, it is not possible for the Claimant to seek to supplant his own omission under CPR 6.75 by instead drawing upon the more general provisions under CPR 23.9 and 23.10, as facilitate a party to respond to an Order made without notice to them. With respect, if it was thought that Paragraph 3 in the 03 August 2021 Order was sufficient to displace the requirements under r.6.37(5) then this is wrong.
6.4 Miss Crowther adds that even if CPR 23.9 can somehow apply in principle, the Claimant’s failure to serve “a copy of the application, notice, and any evidence in support, unless the court orders otherwise” of the order made without notice [r.23.9(2)] fundamentally undermines reliance upon CPR 23.9 and the submission that the Defendant is out of time and so should not be permitted to proceed.
6.5 I agree. If in the alternative the analysis is appropriately to be seen in the context of r.23.10, the Defendant’s lateness has to be balanced with the reasons for it. The failure of the Claimant to provide all required materials, or materials in correct form, does not seem to be denied. I find the Defendant’s explanation as to lateness (in this context, if relevant) a complete and persuasive explanation. I note and accept the Defendant’s submission here that the Claimant has not sought to suggest any prejudice has been sustained because of the timing of the Defendant’s Application beyond, of course, fundamentally challenging the Defendant’s procedural right to object. Further, the Defendant raises a pertinent point that the Claimant’s procedural omissions should have been brought to the attention of the court rather than the Defendant doing so. I agree and add it is more appropriate to prescribe the requirement for such correction and clarification by the Claimant to the period the Claimant obtained the 03 August 2021 Order, or at least by the time he was serving the Claim Form, rather than in the context of hearing the Defendant’s Application. These would also be reasons for permitting the Defendant to proceed if under r.23.
In procedural terms, the Defendant has appropriately acknowledged service of the Claim Form and challenges jurisdiction. Further, if I am wrong on this as a point of procedure, I consider it appropriate in all the circumstances to permit the Defendant to pursue its arguments on jurisdiction.