Court Of Appeal Confirms Defendant Not Required To Take Any Steps In Proceedings Unless Claim Form Validly Served In Time

The Court of Appeal has held that where a claimant has not served a claim form in time, and no extension has been granted, the defendant is not subject to the court's jurisdiction. Consequently, the defendant is not required to file an acknowledgment of service or apply to challenge the court's jurisdiction under CPR 11: Bellway Homes Ltd v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347.

This is because a defendant's obligations to respond to a claim are only triggered by valid service of the claim form. If a claim form has not been properly served, either because an invalid method was used or service was out of time, the proceedings cannot be pursued unless the defendant accepts the court's jurisdiction.

The Court of Appeal overturned the High Court Master's decision, which had held that service of a claim form out of time but via an appropriate method would be effective, meaning that the time limits for acknowledging service and challenging the court's jurisdiction would begin to run (see our blog post on that decision here).

While it is clear from the Court of Appeal's decision that a defendant faced with an invalidly served claim form is not required to take any further steps, in some circumstances, filing an acknowledgment of service indicating an intention to dispute the court's jurisdiction and then making an application to challenge jurisdiction under CPR 11 might be the most convenient route to end the claim. Where a defendant takes no action, it may then find itself on the receiving end of a judgment in default, which it will have to apply to set aside on the grounds that it was wrongly entered. If the court then finds that service was valid, the onus will be on the defendant to establish that it has a real prospect of successfully defending the claim or there is some other good reason why judgment should be set aside.

Background

The underlying claim concerned a serious fire at a block of flats in Barking, Samuel Garside House. The claimants, who were occupiers of various flats in the building, brought claims in negligence and statutory duty against the develop/constructor and the corporate architect of the building.

The claim was issued on 6 June 2022 and the time for service of both the claim form and particulars of claim was extended by consent to 4pm on 21 April 2023. Attempts were made between 3.49pm and 4.03pm that day to send the claim form by fax. These attempts failed. Around the same time, the claim form was placed in a designated area of the claimants' solicitors' reception for collection by the DX courier (which usually occurred "after hours").

A week later, the claimants applied to court for a declaration that the claim form had been served in time, alternatively relief from sanctions and/or a retrospective extension of time for service.

High Court decisions

Master Dagnall held that the claim form had not been validly served by fax and had not been served in time by DX and so refused to declare that the claim form had been validly served. The master also refused to grant the claimants relief from sanctions, noting that CPR 3.9 "cannot be used to evade the jurisdictional limits of CPR 7.6". CPR 7.6 provides that a retrospective extension of time for service may only be granted if a claimant has taken all reasonable steps to comply with CPR 7.5 (ie to complete the step required for the chosen method of service before the relevant deadline). The master held that the claimants in this case had not done so. Consequently, they were not entitled to an extension of time.

Despite this finding, the master held that late service did not render the claim form a nullity or cause it to be automatically struck out. The claim would continue in existence unless and until the court made an order declining or refusing to exercise jurisdiction. Such an order could only be made, however, where the defendants had acknowledged service and subsequently made an application disputing the court's jurisdiction under CPR 11.

Accordingly, the first defendant (the claimants having settled with the second defendant) applied for a retrospective extension of time to file an acknowledgment of service and apply under CPR 11. Both applications were dismissed. The master considered the defendant's applications on the "relief from sanctions" basis as set out in CPR 3.9 and Denton v White [2014] EWHC 906 (outlined here). He held that the defendant's failure to file an acknowledgment of service and apply to challenge jurisdiction in time was a serious and substantial breach, for which there was no good reason, and it was not in any event just in all the circumstances to grant relief from sanctions.

The defendant appealed and the claimants cross-appealed the master's earlier decision that they had not effected valid service of the claim form by DX.

Decision

The Court of Appeal (Coulson LJ giving the leading judgment, with Phillips LJ and Andrews LJ agreeing) dismissed the cross-appeal and allowed the appeal.

The cross-appeal

The claimants argued that the court should infer, as a matter of fact, that the claim form was left out for collection by the DX provider before 4pm on 21 April 2023, and that this constituted compliance with CPR 7.5. The court rejected this argument both on the facts and as a matter of law.

The court found no basis to infer that the claim form was left out for collection by the 4pm deadline. Even if it had been, that would not be sufficient to comply with CPR 7.5 as a matter of law. CPR 7.5 requires a claim form to be left with (or delivered to / collected by) a relevant service provider, for example, a DX provider. This implies that the claim form has been passed from the claimants (or their solicitors) into the possession of the DX provider. It is not sufficient that the claim form is left at reception for later collection. Otherwise, a document left at reception for 24, 48, or 72 hours (given 21 April 2023 was a Friday) before collection by the DX provider would be validly served on the date it was left. In the court's view, this was a "nonsense".

The appeal

The issue on appeal arose out of the potential interplay between defective service by a claimant, and a defendant's consequential rights and obligations. The question was whether a defendant is required, despite defective service, to take positive steps (eg file an acknowledgement of service and/or apply to challenge jurisdiction under CPR 11) and whether, if they do not do so, they are deemed to have accepted the court's jurisdiction.

The court considered various authorities concerning the rights and obligations of the parties where a claimant has failed to serve a claim form properly and/or in time. It summarised the applicable legal principles, including the following:

• If a defendant acknowledges service and does not apply to challenge the court's jurisdiction under CPR 11, that is taken to be a prima facie acceptance of jurisdiction.
• Even then, if it is plain that jurisdiction is in issue, a failure to tick the "intention to dispute jurisdiction" box on the acknowledgment of service may not be fatal (depending on the surrounding circumstances).
• Where a court has concluded that a claim form has not been served within time and no extension can be granted, a defendant is not obliged to file an acknowledgment of service.
• The CPR operates on the basis that the defendant's obligations to respond to a claim are only triggered by the valid service of a claim form. If a claim form has not been validly served and an extension is refused then, unless the defendant accepts the court's jurisdiction, the proceedings cannot be pursued.
• The reason certain cases stress the importance of the defendant applying under CPR 11 is because such an application makes plain that the defendant is taking a service, and therefore a jurisdiction, point. An application under CPR 11 is unnecessary if the claimant has already unsuccessfully raised the issue of service, and therefore jurisdiction, with the court.

The court then considered whether the case before it could be distinguished from the recent Court of Appeal decision in Robertson v Google LLC [2025] EWCA Civ 1262. That decision confirmed that a defendant faced with what it considers to be defective service, and an application by the claimant to rectify that situation, is not obliged to serve an acknowledgement of service or apply under CPR 11.

In asserting that Roberston could be distinguished, the claimants submitted that service by the wrong method should be distinguished from service that was "merely" late. It argued that its claim was in the latter category whereas Roberston was in the former and so not binding. The court rejected this argument for several reasons.

First, on a proper interpretation of CPR 6.14 (the deemed service provision), there is no question of service of a claim form being deemed valid even if it was late. Deemed service occurs on the second business day after completion of the relevant step under CPR 7.5(1), ie only if the relevant step has been taken. If that step has not been taken (either because the method of service was defective or service was late), then the deeming provision does not apply.

Secondly, as a matter of principle, it is usually unprofitable to distinguish between the failure to take a relevant procedural step in time, and the taking of a relevant step timeously but defectively. In any event, the court noted that disputes about service will often concern service that is defective in respect of both method and timing. The court commented that the present case was a good example, as it could be said that the claimants had used the wrong method of service by leaving the claim form out for collection by the DX provider rather than leaving it with the DX provider. Because of that failure, the claim form was not served in time. It would be artificial to distinguish between those two defaults and even more to conclude that one could lead to the court having jurisdiction while the other would not.

Finally, the court accepted that there will be cases of late service where a defendant is required to apply under CPR 11. In one case considered by the court, for example, a defendant could not raise a jurisdictional issue for the first time at a hearing that was intended to deal with a completely different issue (an application to set aside strike out) without having first applied under CPR 11. But this was not such a case. The claimants had already raised the issue of defective service with the court and therefore the issue of jurisdiction was also already before the court.

Accordingly, the court held that the decision in Robertson was binding on it.

The court went on to conclude that, as a matter of common sense, where a claimant has not served a claim form in time, and no extension has been granted, the defendant is not subject to the court's jurisdiction. In the court's view, it would be absurd to suggest that where a claimant is in default for not serving the claim form in time, it can "get out of jail free" by arguing that the defendant failed to acknowledge service and/or apply under CPR 11. It would be wrong to provide the claimant with a remedy for its own default simply on the basis that the defendant should have pretended service was valid and should have filed an acknowledgment of service. Such a scenario would be "bizarre, illogical and unfair".

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