How to Correctly Challenge Non-Service – CPR Part 11

07 Jul 2022

How to Correctly Challenge Non-Service – CPR Part 11

Pitalia v NHS Commissioning Board [2022] EWHC 1636 (QB)

https://www.bailii.org/ew/cases/EWHC/QB/2022/1636.html

 

Being a County Court decision Pitalia does not represent binding authority, but this case does provide an excellent gateway through which to review the often overlooked and problematic Part 11 of the CPR and how to correctly challenge non-service of proceedings. 

The Background and Issues

At first instance the court dismissed an application seeking

a.  an order that service has been affected whether by rectification of the Claim Form under CPR3.10 or by permitting service of the Claim Form under CPR6.15 or by dispensing with the need for service of the Claim Form under CPR 6.16 ; or

b.  an order that time for service be extended.

Having dismissed the application, the Judge granted the Respondent's application to strike out the claim. 

The Respondent had not received a sealed copy of the claim form and therefore, as no good service had taken place, did not propose to file an acknowledgment of service. Later a copy of the sealed claim form was served but after the 4-month validity period. (see Ideal Shopping Direct Ltd v Mastercard Inc [2022] EWCA Civ 14 on the status of an unsealed claim form).

Eventually the Respondent filed an Acknowledgment of Service and made clear in the covering letter that it contested the Appellant's intimated application to regularise service and stated that it intended to apply to strike out the Claim Form. In the relevant box on the Acknowledgment, the Respondent selected "I intend to defend all of this claim" rather than, "I intend to contest jurisdiction."

The appeal from first instance centred upon the District Judge incorrectly treating an application to strike out as satisfying the requirements of Part 11.

The Appeal Decision

The argument that the Respondent had submitted to the jurisdiction in a way which prevented it from making the application to strike out arose from the terms of CPR Part 11. In short, a defendant wishing to challenge “jurisdiction” which includes the general jurisdiction of the court founded upon non-service complaints (an arguably unfortunate term in this context) must make a Part 11 application within 14 days of filing an acknowledgment of service. 

If the Defendant files and acknowledgment but does not make such an application “he is to be treated as having accepted that the court has jurisdiction to try the claim.”

The Court of Appeal’s judgment in Hoddinott v Persimmon Homes laid the foundations on this topic in onerous terms. In Hoddinott an application to set aside an order extending time for service made before an acknowledgment of service was filed neither satisfied nor negated the Part 11 requirement. The Defendant then acknowledged service but did not make a Part 11 application. They were fixed with the consequences of accepting good service had occurred.

In Pitalia HHJ Pearce rejected the contention that Hoddinott had been implicitly overruled by the Supreme Court’s decision in Barton v Wright HassallHoddinott remains binding authority for the proposition that a party who files an Acknowledgment of Service but does not apply under CPR 11.1 for an order declaring that the court has no jurisdiction or that the court should not exercise any jurisdiction which it may have is to be treated as accepting that the court has jurisdiction to try the claim.

The HHJ Pearce held that no Part 11 application had been made but in the circumstances the court was prepared to exercise its general powers under CPR 3.10 to rectify a deemed procedural error in not referring to Part 11. As a matter of substance the application to strike out was challenging jurisdiction for non-service in the appropriate manner. The court took a strict and critical approach to the Claimant’s “lax” approach to service and viewed the factors recommending the use of 3.10 in the circumstances as overwhelming. 

Commentary

The highlights to take from this decision are:

1)     Ticking the wrong box on the acknowledgment of service is rarely, if ever, going to provide grounds to suggest that a defendant has accepted good service. However, the possibility remains open on the right facts for selecting the wrong box to be treated as accepting jurisdiction.

2)     Appropriate applications can be made before an acknowledgement of service is filed, such as to set aside an order validating or extending service, but once an acknowledgment of service is filed a Part 11 application is needed.

3)     An application of some description is required within 14 days of acknowledging service to challenge service. By far and away the preferable course is to follow the wording and process of Part 11. 

4)     If for some reason Part 11 has not been followed and referred to in a Defendant’s application notice but a strike out on the same basis has been sought the court may permit the application to stand and to be heard; curing the issue using CPR 3.10.

5)     The conclusion that the Defendant has accepted jurisdiction only applies when an acknowledgment of service has been filed and no application made under Part 11. If there is no acknowledgment strictly this provision does not bite but the Claimant will undoubtedly seek default judgment. Any DJ obtained would need to be challenged via CPR 13.2 and the failure to acknowledge or make a Part 11 application is no bar to this (Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm)). 

6)     Filing a defence will undoubtedly admit jurisdiction based on good-service and otherwise wholly invalid service can be made good by the Defendant accepting jurisdiction. A defence cannot be filed without prejudice to the position that the Defendant has not been served in the hope of raising the issue at the first hearing. Part 10 also requires that a defendant must file an acknowledgment of service if they wish to dispute the court’s jurisdiction (10.1(3)(b)).

 

7)     An application under Part 11 can be made retrospectively after the 14 days has elapsed but the rules on relief from sanctions will apply to the application to extend time/commence the application late.

Contributors

James Saunders