DISPUTING SERVICE OF THE CLAIM FORM: DEFENDANT FAILED TO USE CORRECT RULE, BUT CPR 3.10 APPLIED
A defendant that wants to dispute jurisdiction should normally apply under CPR Part 11. In The Tintometer Ltd & Anor v Pitmans (a firm) & Anor [2024] EWHC 370 (Ch) Mrs Justice Bacon considered the situation where a defendant had made the incorrect application. She held that the situation could be corrected by CPR 3.10.
THE CASE
The claimants brought an action in negligence against the defendant solicitors. The claimants were granted several extensions of time to serve the claim form, they also amended the name of the defendant after issue. The defendants applied to set aside the orders extending time. An issue arose at the hearing as to whether the application should have been made under CPR 11, the defendants having first indicated in the acknowledgement of service that they were going to dispute jurisdiction.
THE JUDGMENT ON THIS ISSUE
The judge held that CPR 11 should have been used. However it was appropriate to use CPR 3.10 to remedy the situation. The defendants were allowed to dispute jurisdiction. (However the one defendant that remained in the action was, ultimately, unsuccessful in the application)
“Summary of the issue
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- It is common ground that the defendants did not, in their strike out application of 3 October 2023, expressly contest the court’s jurisdiction pursuant to r. 11 in relation to the application to set aside the orders extending time for service of the claim form; nor did their acknowledgement of service indicate an intention to contest jurisdiction. The claimants nevertheless did not, after service of the defendants’ application notice, take issue with the defendants’ entitlement to pursue their application to set aside the extension of time orders. Nor was that point taken in Mr Lawrence’s skeleton argument for the claimants, which instead addressed the merits of the defendants’ strike out application (on both grounds on which it was based).
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- Mr Wood’s skeleton argument for the defendants, however, properly and conscientiously drew the court’s attention to the judgment of the Court of Appeal in Hoddinott v Persimmon Homes (Wessex) [2007] EWCA Civ 1203 as to the consequences of failure to dispute jurisdiction formally under r. 11. Mr Wood nevertheless submitted that in so far as the defendants’ application notice and acknowledgement of service were procedurally defective by failing to raise a r. 11 jurisdiction issue, the claimants had waived any procedural point in that regard by seeking to engage with the defendants’ application on its merits rather than taking a procedural point in that regard.
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- Mr Lawrence in response filed a supplemental note saying that the claimants had not been asked to and had not in fact waived any non-compliance with r. 11. He did, however, note that in the recent judgment of the Court of Appeal in Pitalia v NHS England [2023] EWCA Civ 657, [2023] 1 WLR 3584, the Court had distinguished Hoddinott, on the basis that on the facts of the case the relevant errors of procedure in the application of r. 11 could be corrected by the court under CPR r. 3.10.
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- Mr Wood gratefully adopted the reference to Pitalia and submitted that in this case the same analysis should apply. Mr Lawrence neither conceded nor positively opposed that submission; rather, his position was essentially that it was a matter for the court, considering the principle in Hoddinott in the light of the more recent judgment in Pitalia.
Discussion and conclusions
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- In its judgment in Hoddinott, the Court of Appeal confirmed (at §§25–30) that r. 11 is engaged where a defendant seeks to argue that the court should not exercise its jurisdiction to try a claim, on the grounds that an order extending time for service of the claim form should be set aside. In such a case, the court held, the making of an application to set aside the extension of time for service of the claim form does not disapply the requirement for an application contesting jurisdiction to be made under r. 11.
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- Accordingly, where the defendant in that case had applied to set aside the extension of time for service of the claim form, but thereafter failed to dispute jurisdiction on the acknowledgement of service form, and made no r. 11 application disputing jurisdiction, the defendant was treated as having accepted that the court should exercise its jurisdiction to try the claim notwithstanding the late service of the claim form. The effect of r. 11(5) was, in other words, to treat the defendant as having abandoned its earlier application to set aside the order extending the time for service.
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- 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.
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- 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”.
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- 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.
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- The fact that in the present case the strike out application was filed a few days before, rather than a few days after, the acknowledgement of service does not, to my mind, introduce a material distinction between this case and the situation in Pitalia. The relevant question is whether the defendants’ intentions were clear to the claimants from the documents filed by the defendants. In this case, the defendants’ intentions were indeed at all times clear and were understood by the claimants, and there is no suggestion by the claimants that they understood the defendants to have abandoned their application to set aside the orders extending time for service. On the contrary, the claimants proceeded to serve their evidence for this hearing on the basis that the defendants were pursuing their application to set aside the extensions of time for service, and the jurisdiction point was not raised as an issue until Mr Wood himself referred to Hoddinott in his skeleton argument. As in Pitalia, therefore, the defendants’ error is a technical one which can be readily corrected under r. 3.10.