Summary
Late service of a claim form does not make proceedings a nullity or automatically terminate the claim. A defendant seeking to prevent the claim from proceeding on defective or late service grounds must use the procedure in CPR Part 11.
Where a court order extends time for service, the relevant CPR 7.5 service step must be completed by the time specified in the order. A document left for collection by a DX courier after that time is insufficient. A claimant seeking a retrospective extension under CPR 7.6 must show that all reasonable steps to comply were taken but compliance was impossible. CPR 3.9 and CPR 3.10 cannot be used to evade those jurisdictional limits.
Proper service out of time triggers the defendant’s obligation to seek permission to file an acknowledgment of service late before making a jurisdiction challenge.
Factual background
The claim arose from a serious fire at a block of flats. The occupiers brought claims in negligence and under the Defective Premises Act 1972 against the developer and an architectural entity.
The claim form was issued against Bellway Homes Limited and Sheppard Robson Architects LLP. Time for service was extended by consent order to 4pm on 21 April 2023. The claimants attempted service by fax and DX, but the fax transmissions failed and the DX documents were collected after 4pm. The claim form and particulars were subsequently served out of time.
The claimants applied for declarations that service was valid, alternatively for relief from sanctions and extensions of time. They also sought to add minor claimants and amend the name of the second defendant to Sheppard Robson Limited. The court determined the service and procedural issues, but adjourned the jurisdiction challenge, amendment, limitation and further-party issues.
Held
- Service within the ordered period. The November consent order extended the time for taking a CPR 7.5 service step, not merely the deemed date of service. The express deadline was 4pm on 21 April 2023. The claimants did not prove that a fax transmission had been sent into the transmission network before that deadline. Documents left in the solicitors’ reception for collection by a DX courier were collected after 4pm and therefore did not complete the required service step.
- Solicitor service. The correspondence was construed objectively. The First Defendant’s 9 May 2022 email, read with the earlier correspondence, identified the Leeds business address for service. The Second Defendant’s solicitors were understood to act for Sheppard Robson Limited. Service on solicitors was therefore mandatory under CPR 6.7, but the claimants did not complete a valid service step in time.
- Agreement extending time. CPR 2.11 permits written variations of time limits. Applying Thomas v Home Office, the December 2022 and January 2023 correspondence amounted only to proposals for a future timetable and agreement to review dates after expert evidence. It did not constitute a written agreement extending time to 8 June 2023. No estoppel arose.
- Relief and retrospective extension. The claimants had not taken all reasonable steps to comply with CPR 7.5 and could have served by several straightforward methods before the deadline. CPR 7.6 therefore gave no jurisdiction to extend time. CPR 3.9 and CPR 3.10 could not be used to circumvent that restriction. Relief was refused; the breach was serious and substantial, lacked a good reason, and relief would conflict with the procedural scheme.
- Effect of late service. Following Hoddinott v Persimmon and R (on the application of Koro) v The County Court at Central London, late or defective service did not render the claim form or proceedings a nullity and did not justify automatic strike-out. A defendant wishing to challenge the court’s jurisdiction or the exercise of its jurisdiction had to file an acknowledgment of service and make an application under CPR Part 11. The defendants had done neither. They therefore required permission to file acknowledgments of service out of time before making any jurisdiction challenge.
- Remaining applications. The application concerning the particulars of claim, the identity of the second defendant, proposed additional claimants and the consequences of any jurisdiction application were adjourned. Directions were given for further evidence and applications. Costs were reserved.
The court’s approach to earlier authorities
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Appellate history
First-instance decision. The judgment records no prior appellate determination in the same litigation.
Appeal route
- This judgment [2024] EWHC 1579 (KB) High Court (King's Bench Division)
- Appealed to[2025] EWCA Civ 1347Outcomeappeal allowed and cross-appeal dismissed unanimously; both orders below set aside
Key cases cited
The 30 most senior of 32 authorities cited.
- Barton v Wright Hassall LLP [2018] UKSC 12
- Arnold v Britton and others [2015] UKSC 36
- Texan Management Limited and others v Pacific Electric Wire & Cable Company Limited (British Virgin Islands) [2009] UKPC 46
- Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
- Rezq Allah Koro, R (on the application of) v County Court at Central London [2024] EWCA Civ 94
- Dr Sanjay Pitalia & Anor v NHS England [2023] EWCA Civ 657
- Pitalia v NHS [2023] EWCA 657
- The Good Law Project (R on the application of) v The Secretary of State for Health and Social Care [2022] EWCA Civ 355
- Ideal Shopping Direct Limited & Ors. v Mastercard Incorporated & Ors. [2022] EWCA Civ 14
- BNY v Cine-UK [2022] EWCA 1021
- Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985
- Mastercard Inc & Ors v Deutsche Bahn AG & Ors [2017] EWCA Civ 272
- Denton v TH White Ltd [2014] EWCA 906
- Actavis v Eli Lilly [2013] EWCA 517
- Hoddinott & Ors v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203
- Adelson v Associated Newspapers Ltd [2007] EWCA Civ 701
- Thomas v The Home Office [2006] EWCA Civ 1355
- Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60
- Nanglegan v Royal Free Hampstead NHS Trust [2001] EWCA Civ 127
- DR Jones v Drayton [2021] EWHC 1971
- Mansard v Beyat [2021] EWHC 3355
- Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Ltd (Ocean Neptune) [2018] EWHC 163 (Comm)
- Higgins v ERC [2017] EWHC 2190
- Jones v Chichester [2017] EWHC 2270
- Brightside v RSM [2017] EWHC 6
- Taylor v Giovani [2015] EWHC 328
- Talos v JSC [2014] EWHC 3977
- Venulum Property Investments Ltd v Space Architecture Ltd & Others [2013] EWHC 1242
- The Insight Group Ltd & Anor v Kingston Smith (a firm) [2012] EWHC 3644 (QB)
- Mason v First Leisure Corporation Plc [2003] EWHC 1814 (QB)
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Cases citing this case
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