Dr Sanjay Pitalia & Anor v NHS England

A procedural error in a timely application disputing jurisdiction may be rectified under rule 3.10 of the Civil Procedure Rules 1998 where the application and its supporting documents make its substance clear. The power cannot, however, override an express prohibition in another rule.

A defendant acknowledging service must apply under CPR 11 within 14 days or be treated as accepting jurisdiction. Ticking the acknowledgment form’s jurisdiction box is neither necessary nor sufficient. Errors in issuing or serving originating process attract particular strictness and are not equivalent to a defendant’s technical omission of an express reference to CPR 11.

The claimant general practitioners brought a contractual claim against NHS England. They served an unsealed and amended claim form within the four-month period under CPR 7.5, but did not serve a copy of the sealed form until after that period had expired.

NHS England acknowledged service without ticking the box indicating an intention to contest jurisdiction. Its covering letter maintained the objection to late service, and three days later it applied to strike out the claim. The application was made within CPR 11’s 14-day period but did not expressly invoke that rule.

The district judge struck out the claim. His Honour Judge Pearce dismissed the first appeal in [2022] EWHC 1636 (QB), holding that CPR 3.10 permitted the strike-out application to be treated as a CPR 11 application. The central issue on the second appeal was whether that rectification was permissible.

1. Appeal dismissed. The strike-out application could be treated under CPR 3.10 as an application disputing jurisdiction under CPR 11(1). The acknowledgment of service, covering letter and timely application supported by witness evidence made NHS England’s intention clear. In substance, it sought to stop the claim because the sealed claim form had not been served in time: paras 35–39.

2. The general rectification power cannot override an express prohibition imposed by another provision of the Civil Procedure Rules 1998. CPR 7.6(3), for example, permits a retrospective extension of time for serving a claim form only where its specified conditions are fulfilled. That principle does not mean that CPR 3.10 is unavailable whenever a procedural rule has been breached, since the power necessarily presupposes an error of procedure: para 32(ii).

3. There is a valid distinction between failing to make a required application and making a timely application which contains an error. Where the documents show that the required relief was sought in substance, CPR 3.10 may correct the application. The present case fell on the latter side of that distinction: paras 32(iii), 35–36.

4. Under CPR 11, a defendant which acknowledges service but fails to make the required application within 14 days is treated as accepting jurisdiction. Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 remained binding and had not been impliedly overruled by Barton v Wright Hassall LLP [2018] 1 WLR 1119: para 33.

5. Failure to tick the acknowledgment form’s box indicating an intention to contest jurisdiction was not fatal. A tick is neither necessary nor sufficient: CPR 11 requires a timely application. The application and accompanying documents may establish its substance notwithstanding the omission: para 34.

6. The omission of an express reference to CPR 11 was not a serious and significant transgression requiring refusal of relief under the approach in Denton v TH White Ltd [2014] 1 WLR 3296. It was a technical error of the kind CPR 3.10 was designed to remedy. The strict approach to errors in issuing and serving originating process did not require equivalent treatment of this different procedural error: paras 37–38.

Lady Justice Nicola Davies and Lord Justice Underhill agreed with Lord Justice Bean.

1. Court of Appeal (Civil Division): The second appeal was dismissed unanimously. The court upheld the conclusion that the strike-out application could be rectified under CPR 3.10 and treated as a timely CPR 11 application: [2023] EWCA Civ 657.
2. County Court at Manchester: His Honour Judge Pearce dismissed the claimants’ first appeal and upheld the strike-out order: [2022] EWHC 1636 (QB).
3. County Court: District Judge Matharu dismissed the claimants’ applications concerning service and struck out the claim for failure to serve the claim form within CPR 7.5.