Dr Sanjay Pitalia & Anor v NHS England

The Court of Appeal confirms that a defendant who files an acknowledgment of service and does not apply under CPR 11 within 14 days is to be treated as accepting the court's jurisdiction, but that the court may use CPR 3.10 to rectify a procedural error and treat an application as one under CPR 11 where the defendant's intention to challenge jurisdiction is clear and no specific rule bars such rectification.

The appellants challenged the decision of His Honour Judge Pearce upholding the strike-out of their claim for failure to serve a sealed claim form within the four‑month period prescribed by CPR 7.5. The defendant filed an acknowledgment of service but did not expressly apply under CPR 11; it did, however, shortly thereafter apply to strike out the claim for defective service. The County Court struck out the claim; permission to appeal to the Court of Appeal was granted. The principal issue was whether the defendant's failure to use the procedure in CPR 11 precluded it from challenging jurisdiction by other means, and whether CPR 3.10 could rectify the omission so as to treat the strike-out application as an application under CPR 11.

1. Disposition: The appeal is dismissed. The Court of Appeal endorses the judge below that the decision striking out the claim was open to the defendant because the defendant's strike‑out application could be treated as an application under CPR 11 by rectification under CPR 3.10.
2. Effect of CPR 11(5): The court reaffirmed that, under CPR 11(5), a defendant who files an acknowledgment of service and does not make an application under CPR 11(1) within the prescribed period is to be treated as accepting that the court has jurisdiction. The Court treated the earlier Court of Appeal authority in Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806 as binding on that point and held it had not been impliedly overruled by the Supreme Court in Barton v Wright Hassall LLP [2018] 1 WLR 1119.
3. Expiry and revival of claim forms: The court accepted that a claim form that has not been served within its period of validity is generally no longer valid, subject to specific remedial provisions in the Rules (notably CPR 7.6) or where a defendant has submitted to jurisdiction.
4. Rectification under CPR 3.10: The court held that CPR 3.10 is available to rectify procedural errors of the kind in issue where the court can identify the true substance and intention of the steps taken by a party. The Rule does not automatically conflict with more specific prohibitions (unlike the situation under Vinos v Marks & Spencer plc [2001] 3 All ER 784 and related authority, where a specific "only if" restriction in CPR 7.6(3) prevents rectification to achieve a prohibited retrospective extension). Here the defendant's documents (acknowledgment of service, covering letter and timely application supported by evidence) made its intention to challenge jurisdiction clear and the omission to cite CPR 11 was a rectifiable procedural error.
5. Distinguishing authorities: The court distinguished Vinos and Ideal Shopping Direct Ltd v Visa Europe Ltd [2022] 1 WLR 1541 (which applied the Vinos principle) on the basis that those authorities concerned attempts to use CPR 3.10 to override an express statutory or rule prohibition (an "only if" constraint) and are not authority for a general bar on rectification. The court found analogy with Steele v Mooney [2005] 1 WLR 2819, where a mistaken application within time was treated as rectifiable.
6. Application to facts and outcome: Applying the principles, the court concluded that the defendant's application of 24 January 2020 should be treated as an application under CPR 11 and therefore the defendant could properly challenge jurisdiction. On the District Judge's other findings (including refusal to extend time or dispense with service), the strike‑out was open and the appeal was dismissed.
7. Practical guidance: (a) Failure to tick a box on an acknowledgment form is not determinative; challenge under CPR 11 requires an application. (b) Courts should be alert to the substance of documents and may regularise minor procedural omissions where the party's intention is clear and no specific rule forbids relief.
8. Order: Appeal dismissed; the strike out upheld in accordance with the reasoning above.

• High Court (Queen's Bench Division): His Honour Judge Pearce dismissed the appellants' challenge to the strike‑out; judgment dated 24 June 2022 ([2022] EWHC 1636 (QB)).
• Court of Appeal (Civil Division): Permission to appeal granted by Stuart‑Smith LJ; appeal heard and dismissed by the Court of Appeal on 9 June 2023 ([2023] EWCA Civ 657).