Decide at an early stage whether to challenge service / jurisdiction

Failure to comply with strict procedural rules may result in waiver of the right to challenge: Hoddinott and others v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203.

Background

The claimants applied, without notice to the defendant, to extend the four month time limit for service of the claim form, on the basis that the claimants were not able to particularise their claim fully as they were awaiting expert evidence. The district judge granted the application and extended time for service. The claimants informed the defendant of the claim form and the extension.

After the original four month time limit had expired but before being served with the claim form, the defendant issued an application to set aside the order extending time for service. Before that application was heard, the claimant served the claim form and particulars of claim on the defendant. The defendant's solicitors filed an acknowledgement of service, without ticking the box indicating that they intended to contest jurisdiction. Subsequently, the defendant's application to set aside the order extending the claimant's time for service was heard at first instance. The district judge did not accept the grounds for the extension, which was set aside, and accordingly the claim was struck out as having been served out of time. The claimants appealed on the basis that, subsequent to the application to set aside the extension of time, the defendant had acknowledged service without opposing jurisdiction.

Decision

The Court of Appeal (Sir Anthony Clarke MR, Dyson and Jacob LJJ) allowed the claimants' appeal. Under rule 11(5) of the Civil Procedure Rules ("CPR"), if a defendant files an acknowledgment of service and does not make an application disputing the court's jurisdiction within 14 days thereafter, he is to be treated as having accepted that the court has jurisdiction to try the claim.

The defendant argued that CPR 11 was irrelevant, because there was no question of challenging the court's territorial jurisdiction; it was simply a case of applying the procedural rules as to service. The court rejected this argument. "Jurisdiction" is used in two different senses in the CPR: (i) territorial jurisdiction and (ii) the court's power or authority to try a claim. It is used in the latter sense in CPR 11. A defendant must follow the relevant procedure if it wants to dispute the court's power or authority to try a claim on any basis, including service. This does not only relate to territorial jurisdiction.

The court also rejected the defendant's argument that its application to set aside the order extending time for service had rendered an application under CPR 11 unnecessary. The language of CPR 11 is clear and unqualified. An application to set aside an order extending service is not an application under CPR 11, nor is it an application made within 14 days after filing the acknowledgment of service. The effect of CPR 11(5) is that the defendant was treated as having abandoned the application to set aside the order extending the time for service. This conclusion was reinforced by the fact that in this case the defendant did not indicate on the acknowledgement of service that it intended to contest jurisdiction.

Comment

This case is a stark warning from the Court of Appeal that the rules on disputing jurisdiction will be applied very strictly. In particular, if a defendant files an acknowledgment of service but fails to apply to dispute jurisdiction within 14 days thereafter, it will be taken to have waived any challenge to jurisdiction. This will include challenges based on validity of service as well as a challenge to the court's territorial jurisdiction.

Note in particular that a previous application to set aside an order extending time for service (or presumably any other application challenging service, such as an application to set aside the grant of permission to serve outside the jurisdiction) does not relieve the defendant of the need to apply to dispute jurisdiction within 14 days after filing an acknowledgment of service.

The Court of Appeal's decision is consistent with other recent judgments demonstrating the court's strict approach in applying the procedural rules on disputing jurisdiction. For example, in the case of Strickson v Preston County Court [2006] EWHC 3300 the High Court held that the defendants had waived the right to challenge jurisdiction by filing an acknowledgment of service and then failing to apply to dispute jurisdiction under CPR 11, even though a valid claim form had never in fact been served on them.