The Occupiers of Samuel Garside House v Bellway Homes Limited & Anor

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

First-instance decision. The judgment records no prior appellate determination in the same litigation.