Following the case of Hoddinott v Persimmon Homes [2007] EWCA Civ 1203, reported in our February edition of Liability News, practitioners were concerned that if Defendants wished to rely on a limitation defence then, in accordance with CPR Part 11; notification should be given on the Acknowledgement of Service Form confirming that the Defendant was disputing the Court's jurisdiction and an application had to be made within 14 days. This caused great concern amongst Defendants, as often it is not possible to establish whether there is a limitation issue until much later in the claim, and often not until after the Claimant's medical records have been received. Defendants were concerned that Claimants would be able to use this argument to prevent limitation defences being raised at a later stage, or that they would be forced to make applications to strike out claims without having sufficient evidence before them.
Following the case of Dunn v Parole Board [2008] EWCA Civ 374, the Court of Appeal has thankfully closed the door to Claimants being able to raise this argument by deciding that "limitation provisions provide a defence to the claim; they do not go to jurisdiction" (Lord Justice Thomas at paragraph 20).
In Hoddinott, the Defendant was deemed to have accepted service correctly, despite an outstanding application by the Defendant to set aside an order extending time for service of the Claim Form. Whilst this was waiting to be heard the Claimant served the Claim Form and the Defendant filed the Acknowledgement of Service simply noting they intended to defend the claim. The matter found its way to the Court of Appeal, which held that by doing so the Defendant was accepting the court's jurisdiction and so they had effectively abandoned their application. Guidance was also given to the meaning of jurisdiction in that it refers to the court's "power or authority to try a claim". It is not strictly limited to territorial jurisdiction. A Defendant must follow the procedure set out in CPR 11 if it wants to dispute the court's power or authority to try a claim on any basis, including service.
In a recent article in the Law Society Gazette, District Judge Taylor commented upon Hoddinott and considered that its implications were "far reaching". He stated that "a defendant who wants to persuade the court not to make an order, for example, because the relevant limitation period has expired or because of some procedural defect, must give notice of his intention to contest jurisdiction and make an application within 14 days of filing his acknowledgement"
Unsurprisingly, this argument was soon advanced by the Claimant's solicitors in the case of Dunn v Parole Board [2008] EWCA Civ 374. The Claimant sought to argue that as the Defendants had not complied with the requirements of CPR 11 and challenged the court's jurisdiction to try the claim, they were debarred from raising issues of limitation. Dunn(D), a prisoner, had served two-thirds of his sentence and was released on licence to serve the remaining sentence in the community provided that he resided at a named hostel. As D broke the terms of his licence it was revoked and he was recalled to Prison. D appealed this decision and after a delay of 10 months an oral hearing was held and the board, accepting D's submissions, recommended that he be released.
Four years later D sought to bring a claim, under the Human Rights Act 1998, that the Board had acted unlawfully because of the delay in considering his recall. The Parole Board were served with a Claim Form and an Acknowledgement of Service was filed simply stating that the Board intended to dispute the claim. The Board secured an extension of time for service of the Defence so that it could investigate the claim. Shortly before their Defence was due, the Board made an application to strike out the claim on the basis that proceedings were not brought within one year as required by Section 7(5) of the Human Rights Act and that it would not be equitable to extend the period. D sought to argue that the Defendant was debarred from raising this argument as they had accepted the Court's jurisdiction when filing their Acknowledgement of Service and should have made their application to dispute jurisdiction. On the grounds of limitation, within 14 days of service of their Acknowledgement in accordance with CPR 11 and in accordance with the case of Hoddinott.
As stated above, the Court of Appeal, in their judgment, considered this "bold and novel argument" was without merit. Lord Justice Taylor considered that "the argument put forward is misconceived; CPR 11 had no relevance to the Parole Board's application to strike out the claim" He considered that limitation provisions "have generally been treated under the law of England and Wales as procedural. There is no basis for categorising the limitation provisions of the HRA in any different way." Lord Justice Lloyd, at paragraph 47, also voiced his disapproval of the Claimant's interpretation of Hoddinott stating "There is nothing in the point that the Defendant's application was precluded under CRP Part 11 by the fact that it had acknowledged service".
The case of Dunn confirms that limitation provisions provide a defence and do not go to jurisdiction. Whilst practitioners should always think carefully before completing Acknowledgements of Service, to ensure that there are no procedural irregularities to challenge the Court's jurisdiction, it is not necessary to undertake frantic enquiries and requests for documents to determine issues of limitation within the first 14 days of receiving a claim. Such a task would be unjustifiably onerous and the Court of Appeal has seen fit to recognise this fact. They have thankfully been quick to confirm that challenges under CPR Part 11 to the Court's jurisdiction do not include issues of limitation. Defendants can now breath a sigh of relief.
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