Hoddinott & Ors v Persimmon Homes (Wessex) Ltd

A defendant contending that late service means the court should not try a claim must use the procedure in rule 11 of the Civil Procedure Rules. After acknowledging service, the defendant must apply under rule 11 within 14 days. An earlier application to set aside an extension of time is no substitute. Failure to comply amounts to acceptance that the court should exercise its jurisdiction.

On a timely application to extend service, the absence of a good reason makes an extension unlikely but does not remove the court’s discretion. The fact that the claim is clearly not time-barred is relevant but not decisive. Timely informal notification of the claim may also carry substantial weight. An extension may exceptionally be justified by an unusual combination of those circumstances. Reliance on a without-notice extension order creates no relevant false sense of security.

Hoddinott & Ors v Persimmon Homes (Wessex) Ltd concerned claims arising from alleged failures properly to reinstate farmland after sewer construction. The claim form was issued on 22 May 2006. Shortly before the four-month service period expired, the claimants obtained a without-notice order extending time until 22 November 2006 because their evidence and particulars were incomplete.

A copy of the claim form was sent to the defendant for information within the original service period. Formal service, accompanied by particulars of claim, occurred within the extended period. The defendant had applied to set aside the extension and subsequently acknowledged service, indicating that it intended to defend the claim but not to contest jurisdiction.

District Judge Daniel set aside the extension and struck out the claim. The appeal raised whether rule 11 of the Civil Procedure Rules applied, whether the earlier set-aside application preserved the defendant’s challenge after its acknowledgement of service, and whether the discretion to extend time had been exercised correctly.

1. Appeal allowed. The court set aside District Judge Daniel’s order. The order extending time for service until 22 November 2006 therefore remained effective.

2. Rule 11 of the Civil Procedure Rules applied where a defendant contended that the court should not try a claim because its claim form had been served late. “Jurisdiction” in rule 11 was not confined to territorial jurisdiction. It encompassed both the court’s authority to try a claim and whether that authority should be exercised.

3. After filing an acknowledgement of service, a defendant wishing to maintain either form of jurisdictional challenge had to apply under rule 11(1) within 14 days. The defendant’s earlier application to set aside the extension order did not satisfy or disapply that requirement. Rule 11(5) therefore treated the defendant as having accepted that the court should exercise its jurisdiction. The earlier application was consequently treated as abandoned.

4. The solicitor’s desire to defer service until complete evidence and settlement-promoting particulars were available was not a good reason for delaying the claim form. Applying Hashtroodi v Hancock [2004] EWCA Civ 652 and the cases reported with Collier v Williams [2006] EWCA Civ 20, an absence of good reason made an extension unlikely, although it did not extinguish the discretion under rule 7.6(2).

5. A claimant who obtained a without-notice extension did so at its peril. The order could subsequently be set aside, and any resulting false sense of security was irrelevant. The court explained Jones v Wrekin Borough Council and disapproved the contrary understanding of that decision in Mason v First Leisure Corporation Plc [2003] EWHC 1814 (QB).

6. The contract claim was an action upon a specialty and carried the 12-year limitation period prescribed by section 8 of the Limitation Act 1980. It was clearly not time-barred. That circumstance favoured an extension but was not determinative. The defendant had also received a copy of the claim form within the original service period and therefore knew the nature of the issued proceedings. That important fact had been omitted from the district judge’s assessment. The unusual combination of timely notification and the clear absence of a limitation advantage justified preserving the extension exceptionally, despite the lack of a good reason for delayed formal service.

1. Court of Appeal (Civil Division): In Hoddinott & Ors v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, the court allowed the appeal and set aside District Judge Daniel’s order.

2. High Court, Queen’s Bench Division, Bristol District Registry: On 30 January 2007, District Judge Daniel set aside the earlier extension of time for service and struck out the claim.

3. High Court, Queen’s Bench Division, Bristol District Registry: On 13 September 2006, District Judge Rowe made a without-notice order extending time for service of the claim form until 22 November 2006.