PITALIA AND ANOTHER V NHS COMMISSIONING BOARD [2022] EWHC 1636 (QB)

HEADLINE SUMMARY

The court could rectify an incorrectly made application to strike out a Claim Form using its powers under CPR 3.10.

COMMENTARY

When a claim form is not properly served, the Acknowledgement of Service should indicate that an application challenging the court's jurisdiction will be made. That application should be made under CPR 11(1). However, this decision demonstrates that the court has some wiggle room with regard to the form of such an application.

The court will not necessarily be as flexible in another case, however. Here the arguments in favour of rectifying the application under CPR 3.10 were 'overwhelming'. The appellants' solicitors' 'dilatory or lax approach to good and proper service' was heavily criticised, with the judge stating that 'every litigation lawyer knows (or at least should know) the importance of timely service of originating process'. This procedural failure by the appellants' solicitors shifted the argument in favour of the respondent and serves as a reminder that the court will not look kindly on failures of basic procedural steps.

FACTUAL BACKGROUND

The respondent's solicitors were served with the Claim Form outside of the 4-month period for service. They filed an Acknowledgment of Service, but failed to tick the box indicating their intention to dispute the court's jurisdiction. Instead, they attached a letter to the Acknowledgement of Service indicating their intention to dispute the court's jurisdiction. They later made a strike out application seeking the claim be struck out for improper service of the Claim Form under CPR 7.5.

The appellants argued that by filing an Acknowledgment of Service the respondents had accepted the court's jurisdiction.  They had not made an application under CPR 11(1) to challenge it. But the judge held that the respondent's application to strike out should be treated as an application made in compliance with CPR 11(1) and that the court should exercise its powers under CPR 3.10 to rectify the procedural failing. Any other outcome 'would be a triumph of form over substance'.

KEY LEGAL POINTS

Despite the court's rectification of the application in this case, HHJ Pearce emphasised that the legal position on CPR 11 (laid out in Hoddinott v Persimmon Homes) remains clear and unchanged. The only truly safe way for a defendant to challenge the court's jurisdiction is through an application under CPR 11(1). Any errors of procedure will be judged on a case-by-case basis.

HHJ Pearce also confirmed that a defendant does not automatically lose its right to dispute the court's jurisdiction by filing an Acknowledgement of Service. Such a right to dispute exists even if the defendant fails to indicate their intention to dispute the court's jurisdiction on the said Acknowledgement. There must be an unequivocal submission or no application made under CPR 11(1) within 14 days of filing an Acknowledgement of Service to lose the right to challenge the court's jurisdiction. 

Key contact

Conor McDermott