Social Landlords very often have complex corporate structures and it is not uncommon for disrepair claims to be issued against a company which, whilst part of the same group of companies, is not actually the owner of the building or the landlord for the tenant bringing the claim. Where this happens, the company that has been incorrectly sued should raise this in its defence and invite the Claimant to discontinue the claim and pay the costs incurred in drafting and filing the defence. The Claimant would then be able to bring a fresh claim against the correct landlord.

However, often tenant lawyers, whose only interest is making money for themselves, have scant regard for the Civil Procedural Rules and do not deal with the process correctly resulting in the situation that by the time the correct landlord company receives a sealed claim form, more than four months have elapsed since the proceedings were issued. The Court of Appeal in this case again reminds practitioners of the importance that a sealed claim form is served in time and the procedure under CPR Part 11 where this does not happen.

The case of Pitalia & Anor v NHS England [2023] EWCA Civ 657 involved an appeal regarding a procedural issue in a legal claim. Whilst not a housing case, the procedural points raised are expressly relevant to Registered Providers dealing with the torrent of disrepair claims issued against them.

The claimants, who were general practitioners, filed a claim against NHS England for non-payment and under-payment of fees. They failed to serve the claim form within the required time frame and later served an unsealed version of the claim form alongside other documents. The defendants filed a defence in which they argued that the claim was not effectively served. The court initially struck out the claim, and the claimants appealed this decision.

The central issue in the appeal was whether defendants, by filing a defence arguing the claim form had not been served within the four-month window, had accepted jurisdiction and lost their right to challenge the claim form's validity by not following the appropriate procedure.

Facts

On 2 August 2019, the appellants' solicitors delivered the claim form to Preston County Court, accompanied by a letter requesting the form's return for service. The claim was officially issued on 12 August 2019, with all court fees paid by 20 August 2019. The appellants' solicitors failed to notice that the court had not returned the issued claim form until the deadline for service had almost expired. Consequently, they served an unsealed version of the claim form (which had been amended since issue) along with other documents on 27 November 2019.

On 10 December 2019, the respondent's solicitors notified the appellants' solicitors that the claim had not been effectively served.

On 12 December 2019, the deadline for service, the respondent informed the court that good service had not been achieved.

On 7 January 2020, the appellants served a copy of the sealed claim form.

On 16 January 2020, the respondent's solicitors responded, stating that the claim should have been served by 12 December 2019, and that they should have received the original sealed claim form, not a copy. They indicated their intention to apply for the claim to be struck out.

On 17 January 2020, the appellants made an application seeking either an order that valid service had been achieved or an extension of time for service. The respondent filed an Acknowledgment of Service on 21 January 2020, indicating an intention to defend the claim but not to contest jurisdiction. Three days later, the respondent made an application to strike out the claim due to non-compliance with CPR 7.5.

On 27 August 2021, District Judge Matharu dismissed the appellants' applications and struck out their claim.

On 5 April 2022, an appeal against strike out was lodged, which was unsuccessful and dismissed on 24 June 2022.

The Appellants appealed again, and this went before the Court of Appeal.

The law

It was reiterated by the courts that it is key to submit a sealed, original claim form in a timely and lawful manner. It was held that a failure to comply with rules regarding the timely and lawful service of an originating process was of far greater significance than a defendant not contesting jurisdiction of the Courts under CPR Part 11, upholding the judgment of the Supreme Court in Barton v Wright Hassall LLP [2018]. Lord Justice Bean maintained that errors in issuing and serving originating processes are in a class of their own. It was held that the defendant's application can, by the use of CPR 3.10, be treated as having been made under CPR 11(1).

The Birketts view

Whether our clients are claimants, or defendants, it is vital to follow procedural rules. However, the salient outcome from this case is that the requirement to produce originating documents within the four-month time limit set by Part 7.5 of the Civil Procedure Rules is paramount. Procedural errors, such as failing to expressly mention Part 11(1) in the defendant's non-compliance application can be rectified under CPR 3.10 and are not fatal to the application, particularly where it is clear a defendant intended to engage with Part 11 and successfully applies to challenge jurisdiction within the 14-day period. Had the defendants' solicitors sought a declaration under CPR 11(1), there would have been little for the claimants to have said in response.

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.