Court Of Appeal Clarifies Late Service Rules: No Jurisdiction Without Timely Claim Form

In Bellway Homes Limited v The Occupiers of Samuel Garside House [2025], the Court of Appeal (CoA) has overturned an earlier decision of the Technology and Construction Court (TCC) on late service, clarifying that:

• where a claimant fails to validly serve its claim form on the defendant within the applicable time and no extension has been granted, the defendant is not subject to the court's jurisdiction and is not obliged to respond to the claim; and
• leaving a claim form at reception for later collection by a DX provider is not a sufficient service step under CPR 7.5.

We outline the key takeaways from the CoA decision below, and the implications of this decision for both claimants and defendants when facing missed service deadlines.

Background: CPR 7.5 and service deadlines

Under the Civil Procedure Rules (CPR), proceedings start when the court issues a claim form at the request of the claimant, and the date of issue is the date entered on the form by the court. The next step, procedurally, is for the claim form to be served on the defendant. This must ordinarily be done within:

• four months from the date of issue of the claim form (for claims served within the jurisdiction); or
• six months for claims served out of the jurisdiction,

failing which an extension or validation order is typically required.

In this case:

• The claim form was issued in June 2022.
• By court order, the deadline for the claimants (occupiers of flats in Samuel Garside House) to file and serve the claim form and particulars of claim on the defendants was extended to 4pm on 21 April 2023.
• In the run-up to the deadline, the claimants' solicitors sought a further extension, attempted service by fax (which failed), and left the claim materials in their reception area for out-of-hours collection by the DX courier.
• The defendants promptly disputed service.

Technology and Construction Court's initial ruling

The TCC found on the facts that the claimants had failed to serve the claim form by the applicable deadline. Service by fax had failed, and although service by DX was valid, this had not been effected in time.

However, despite this, the judge had held late service did not render the claim "dead" or permanently "in limbo." Instead, he had accepted the claimants' submission that service of the claim form out of time but by a valid method had been effective, such that the defendants were obliged to file an acknowledgment of service (AoS) and/or make a CPR Part 11 application.

In a second judgment, the TCC refused the defendants' applications to serve an AoS and/or a CPR Part 11 application out of time.

Grounds for appeal and cross appeal

The defendants appealed. They argued that, having found that the claim form was not served in time and that no extension was available, the judge should have concluded that the claim could not proceed, and that there was no obligation to file an AoS or to bring a CPR Part 11 application in those circumstances.

The claimants cross‑appealed, contending that they had effected valid service of the claim form by DX by the stipulated deadline.

Court of Appeal decision

The CoA allowed the defendants' appeal and dismissed the cross‑appeal, holding that the first instance judge's approach had been wrong and inconsistent with the authorities.

In particular, the CoA clarified that:

1. Leaving a document "out for collection" by DX does not constitute effective service

Coulson LJ agreed with the judge at first instance that service by fax had not been validly effected. In relation to service by DX, the "step required" by CPR 7.5 refers to "posting, leaving with, delivering to or collection by the relevant service provider".

In this case, the claimants had left the papers in their reception for collection by the DX courier before 4pm on the relevant date. They argued that this constituted compliance with CPR 7.5.

The CoA disagreed, holding that:

• As a matter of law, leaving papers in one's own reception "for collection" is neither "leaving with" nor "collection by" the relevant service provider. To "leave" documents "with" the provider requires an act of transmission by the claimants.
• Each of the methods of service identified in CPR 7.5 constitute not only a positive act but also an irrevocable one: this was not the case here, since documents left in a reception can be taken back and amended.
• The claimants' argument missed the "whole point as to why service by way of DX is an approved method of service" – which is that as with first class post, it provides for delivery on the next business day. Accordingly, in order to serve the documents by 4pm on the deadline, the claimants would have had to leave them with the DX on the previous business day.

2. Where a claim form is not served in time, there is no obligation on a defendant to file an AoS or challenge jurisdiction

Coulson LJ considered a number of authorities concerning the rights and obligations of the parties where the claimant had failed to serve a claim form properly and/or in time.

In particular, he concluded that the recent CoA decision in Robertson v Google [2025] EWCA Civ 1262 was binding on the Court and was indistinguishable from the present case. He summarized the applicable principles as follows:

• The CPR operates on the basis that valid service of the claim form is required to trigger a defendant's obligations to respond. Thus, a defendant is not obliged to file an AoS or apply to challenge jurisdiction under CPR 11 where a claim form has not been validly served and no extension has been granted.
• A defendant's obligations to respond to a claim are only triggered by valid service of the claim form and, unless and until that occurs, the defendant is not subject to the court's jurisdiction.
• It would be "bizarre, illogical and unfair" to expect a defendant in such circumstances to engage in the fiction that service had been valid, thereby providing the claimant with a "remedy for its own default".
• Robertson is directly on point: in circumstances where a claimant themselves unsuccessfully raised the question of service with the court by bringing an application to validate or extend time for defective service and the defendant opposes it, a separate CPR Part 11 application is unnecessary. The jurisdiction issue is already squarely before the court; hence duplicating paper, time and cost is unwarranted.

On that analysis, the CoA overturned the TCC judgment: with no valid service and no extension there was no jurisdiction to proceed, and no requirement to pretend otherwise by filing an acknowledgment or a CPR Part 11 application.

Why distinguishing "late" from "wrong method" service failed

The claimants' attempt to draw a distinction between late service and wrong‑method of service was rejected.

The CoA held:

• CPR 6.14's deeming effect does not operate to validate late service; it only deems the date of service where CPR 7.5 has been complied with.
• It is artificial and unhelpful to separate 'late' versus 'wrong method' in this context, as many service failures encompass both. Either way, valid service pursuant to CPR 7.5 is required within time or a CPR 7.6 extension – failing either, the defendant's acknowledgment and/or Part 11 obligations do not arise.
• The contrary view would produce unfair and illogical results by allowing claimants a "get out of jail free" card for their own default "as if the invalid service had never happened" all because the defendant did not acknowledge the invalid service and/or make a CPR Part 11 application.

Key takeaways for claimants and defendants

Some of the key practical considerations arising out of the CoA judgment include:

For claimants:

• If a claimant fails to serve a claim form on the defendant in time, its only remedy will be to seek an extension of time pursuant to CPR 7.6;
• if CPR 7.5 is not validly followed, there will be no defendant obligations under CPR 9 to 11. Proceedings cannot continue against a defendant where service was invalid and no extension is granted;
• as a practical matter, leaving documents in one's own office "for DX collection" is insufficient - there must be an "irrevocable transmission" to the service provider.

For defendants:

• Where service is invalid and no extension is granted, there is no obligation on defendants to file an AoS or to make a CPR Part 11 application to avoid being treated as accepting jurisdiction;
• if the claimant brings an application to validate service or extend time, opposing that application directly raises the jurisdiction issue, rendering a duplicative CPR Part 11 application unnecessary;
• however, once a claim form is validly served, the usual deadlines set out in the CPR, and silence may be taken as acceptance.

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.