DR SANJAY PITALIA & Anor v NHS COMMISSIONING BOARD

A defendant who files an acknowledgment of service but does not make the application required by CPR Part 11 is treated as accepting the court’s jurisdiction, even where the challenge concerns late service or expiry of the claim form. That procedural consequence is distinct from submission to jurisdiction by unequivocal conduct.

An application described as a strike-out application may nevertheless be rectified under CPR 3.10 and treated as a Part 11 application where its substance, timing and supporting evidence show that it advances the necessary jurisdictional challenge. Procedural rules should be applied consistently, but the court may correct an error where doing so avoids form defeating substance.

The appellants, doctors, brought a contractual claim against the respondent. They served an amended and unsealed claim form, followed later by a sealed claim form after the period for service had expired.

The District Judge dismissed the appellants’ applications to validate or extend service and struck out the claim. The respondent had filed an acknowledgment of service, indicating an intention to defend but not ticking the box indicating an intention to contest jurisdiction. It subsequently applied to strike out the claim for defective service.

Permission to appeal was granted only on whether the respondent had accepted jurisdiction or lost the right to challenge the validity of the claim form. The central issues were the effect of CPR Part 11, the authority of Hoddinott v Persimmon Homes, and whether the strike-out application could be rectified as a Part 11 application.

1. Appeal dismissed. The District Judge was right that the claim was liable to be struck out on her unchallenged findings concerning defective and late service. The respondent was entitled to challenge jurisdiction because its application was capable of being treated as an application under CPR 11(1).
2. The court was bound by Hoddinott v Persimmon Homes [2005] 1 WLR 806. A defendant which files an acknowledgment of service but does not make the application required by CPR 11(1) is treated by CPR 11(5) as having accepted that the court has jurisdiction. Where an appellate court gives alternative grounds, each sufficient to support its decision, a statement of principle forming one such basis may constitute part of the ratio.
3. The Supreme Court’s reasoning in Barton v Wright Hassall [2018] UKSC 12 was not inconsistent with Hoddinott. A claim form normally loses validity when not served in time, but procedural rules may preserve or restore its validity, including where the defendant has accepted jurisdiction under CPR Part 11.
4. Failure to tick the jurisdiction box on the acknowledgment of service was neither necessary nor sufficient to establish acceptance of jurisdiction. The relevant question under CPR 11 is whether the prescribed application was made. The accompanying correspondence was relevant to ordinary submission by conduct, but could not displace the consequence imposed by CPR 11(5).
5. The respondent’s strike-out application was not, on its face, an application under CPR Part 11. However, the omission was a procedural error capable of rectification under CPR 3.10. The application was made within the prescribed period, the respondent consistently challenged the validity of the claim form, and its evidence identified the same jurisdictional basis. Treating it as a Part 11 application avoided an undue triumph of form over substance.
6. The court distinguished the two procedural routes: a party may submit unequivocally to jurisdiction, or may be treated as submitting under CPR 11(5) by failing to make the required application. The two concepts must not be conflated.

• High Court (Queen’s Bench Division): Appeal from the order of District Judge Matharu dated 27 August 2021 dismissed. The order striking out the claim was upheld.
• County Court at Manchester: The District Judge dismissed the appellants’ applications concerning validation, dispensation or extension of service and granted the respondent’s strike-out application.
• Permission to appeal was granted only on the jurisdiction and submission issue. Permission was refused on the grounds concerning dispensation and extension of time for service.