Court of Appeal upholds strike out for late service of claim form

In Pitalia & Anor v NHS England [2023] EWCA Civ 657 the Court of Appeal held a claimant could not resist its claim being struck out as a result of its failure to serve the claim form within the four month period in CPR 7.5. This was the case even though the strike out application had not been made correctly.

Background

Pursuant to CPR 7.5, a claimant must serve the claim form on the defendant within four months of it being issued by the court. If the claimant fails to do so, the defendant may challenge the claim on the basis that the claim form is no longer valid. The Court of Appeal has previously held that a strike out application by the defendant in these circumstances should be made under CPR 11 as an application to challenge the court’s jurisdiction (Hoddinott and others v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203).

The facts of this case can be summarised as follows:

• The Claimants’ claim form was issued on 12 August 2019. The Claimants’ solicitors did not notice that the Court had not returned the issued claim form to them until the time for service had almost expired. They therefore served an unsealed claim form (i.e. not stamped by the court) under cover of a letter dated 27 November 2019.
• Two days before the expiry of the four month period for service, the Defendant's solicitors wrote to the Claimants' solicitors alerting them that the claim had not been effectively served. On 12 December 20219, the Defendant notified the Court that good service had not been effected.
• The Claimants served the sealed claim form on the Defendant on 7 January 2020, outside of the four month period of validity.
• The Defendant filed an Acknowledgment of Service dated 21 January 2020. On the Acknowledgment of Service form the Defendant ticked the box stating, "I intend to defend all of this claim" but not the box stating, "I intend to contest jurisdiction."
• On 24 January 2020, the Defendant made an application for the claim to be struck out due to non-compliance with CPR 7.5.

The Claimants sought to resist the Defendant’s strike out application. They argued that the application was invalid because in the Acknowledgment of Service the Defendant had not challenged jurisdiction, so should be taken to have accepted service. Further, the Defendant had failed to make the application under CPR 11 and the Court had no power to rectify the Defendant’s defective application under CPR 3.10 (the courts’ general case management power to rectify procedural errors).

The matter was initially dealt with by a District Judge and appealed to HHJ Pearce, sitting in the High Court. He dismissed the appeal holding that the Defendant's application to strike out the claim form due to non-compliance with CPR 7.5 should be rectified under CPR 3.10 and treated as an application under CPR 11 for a declaration that the Court had no jurisdiction to hear the claim.

The Claimants appealed HHJ Pearce’s decision to the Court of Appeal.

The parties’ arguments in the Court of Appeal

In the Court of Appeal, the parties and the Court proceeded on the basis that the Defendant was required in light of the Hoddinott case to make an application under CPR 11(1) (i.e. to challenge jurisdiction) in order to challenge the validity of a claim form served outside the four month period.

The Claimants challenged the High Court’s decision on two grounds.

Firstly, applying Vinos v Marks & Spencer Plc [2001] 3 ALL ER 784, they argued that the Court could not rectify the Defendant’s failure to challenge jurisdiction in the Acknowledgement of Service. Specifically, they argued that the Defendant had accepted jurisdiction pursuant to CPR 11 and the power to cure procedural defects under CPR 3.10 cannot be used to override an express prohibition in another rule.

Secondly, they argued that applying the law on relief from sanctions, the Defendant was not entitled to relief because its failure to comply with CPR 11 was serious and significant. They also argued that if their own failure to serve the sealed claim form on time could not be cured by CPR 3.10 despite the serious consequences, then the same procedural rigour should be applied to the Defendant’s failure.

The Defendant argued that there was nothing that prevented the Court using the rectification power in CPR 3.10 to treat its application as being made under CPR 11(1). Further, the facts were different from Hoddinott. The Defendant's Acknowledgement of Service was accompanied by a covering letter, indicating the Defendant's intention to have the claim struck out and was followed, three days later, by an application to set aside service and strike out the claim.

Decision

The Court of Appeal held that the Defendant’s strike out application of 24 January 2020 could be rectified by CPR 3.10 as having been made under CPR 11(1). It agreed with the High Court that the failure of the Defendant's solicitors, when completing the Acknowledgment of Service form, to tick the box indicating an intention to contest jurisdiction was not fatal to their application for relief, stating that “a tick in the box is neither necessary nor sufficient as a basis for challenging jurisdiction.” CPR 11.1 states an application must be made within 14 days, not that the box must be ticked.

The three documents produced by the Defendant - the Acknowledgment of Service, the covering letter and the application to strike out supported by witness statements – made it clear that the Defendant’s intention was to challenge the proceedings because the Claimants had failed to serve the claim form in time.

Accordingly, the Court of Appeal unanimously dismissed the Claimants' appeal.

Key Takeaways

This case is a reminder that a claimant must serve the claim form within the four month period after issue. This procedural rule is enforced strictly, so failure to effect proper and timely service is likely to result in the claim being invalid. As shown in this case, even if the defendant makes a procedural error in how it challenges service of the claim form, this is unlikely to cure the claimant’s own failure to serve the claim form on time.

The case also confirms the principle in the Hoddinott case that an application to challenge a claim form served out of time should be made under CPR 11 as an application to challenge the court’s jurisdiction.

With thanks to Laura Lonsdale for her assistance in preparing this article.