The Dekagram: 28th April 2025

This week Conor Kennedy considers a novel point of construction in relation to challenging service of claim forms; the headline is that defendants must take steps to mount a jurisdictional challenge within the tight deadlines provided for in the CPR, but Conor asks whether this decision may be appealed, given the particular facts of the case in question.

Occupiers of Samuel Garside House v Bellway Homes Ltd: The status of claim forms served late, and the obligation on defendants to be pro-active in challenging late service

In our 22^nd July 2024 Dekagram, Sarah Prager KC covered an earlier skirmish between the parties in Occupiers of Samuel Garside House v Bellway Homes Ltd [2025] EWHC 772 (KB) (you can read that here). Some 9 months later, the case came back before Master Dagnall for yet more procedural applications. This time, the issue was whether time for challenging jurisdiction of a claim form could start to run in circumstances where the claim form had been served late, and had therefore arguably never been “effectively” served.

Background and Procedural History

The essential facts of the dispute were that the deadline for service of a claim form was 4pm on 21^st April 2023. The Claimants served the claim form by a valid method (DX), but missed the 4pm deadline. The Defendant took the view that because the claim form had been served late, it was invalid. As such, they did nothing, but indicated that they would respond to any application by the Claimants for leave to serve out of time with an application for strike-out.

In said earlier skirmish, the Claimants applied for a declaration that the claim form had been validly served, or alternatively for relief from sanction for late service/an extension of time for service. Master Dagnall had concluded that the court did not have jurisdiction to grant a retrospective extension of time in circumstances where the Claimants had not taken all reasonable steps to comply with CPR 7.5.

Despite having found that the claim form had not been served within time, and that he did not have jurisdiction to grant a retrospective extension, Master Dagnall held that late service did not render a claim form a nullity, such that the claim form continued in existence unless and until the court makes an order declining or refusing to exercise jurisdiction. In circumstances where the Defendant had not applied to challenge the court’s jurisdiction, the Master could not decide the question of whether a jurisdiction challenge would succeed.

Round 2: The Defendant Seeks to Challenge Jurisdiction

Moving forward to the present day, the parties came back before Master Dagnall, the Defendant now having applied for an order granting a retrospective extension of time for filing an acknowledgement of service to the claim, specifically for and confined to the purpose of disputing the court’s jurisdiction under CPR 11. The Defendant also applied for a declaration that the court had no jurisdiction to try the claim, alternatively, an order that the court would decline to exercise jurisdiction, and an order that service of the claim form be set aside.

The Defendant’s argument was that if the claim form was not dead, it was in a ghostly “state of limbo”. The Claimants denied that the claim form was in limbo, and submitted that “service has taken place even if out of time and so that it is potentially subject to attack”. The parties disagreed as to whether there could ever be effective service of such a claim form out of time, such as would commence the time period for filing an acknowledgement of service.

Considering the Defendant’s present application, the Master noted that where a defendant wishes to dispute jurisdiction “CPR 11(2) [provides] ‘A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10’”. The Master held that if a defendant files an acknowledgement of service but does not make an application under CPR 11(1) within 14 days of that filing, “he is to be treated as having accepted that the court has jurisdiction to try the claim” by CPR 11(5).

The Master considered that the case raised “an important and novel point of law” in which only one of the many authorities cited by the parties (Pitalia v NHS [2023] EWCA Civ 657) had actually dealt directly with the situation of a claim form which had been properly served, but out of time.

In the Master’s analysis, there were three categories of case:

1. Valid service of a claim form in time, but where a defendant seeks out of time to challenge jurisdiction either on the basis that the court has no jurisdiction or should not exercise jurisdiction (this was the situation in Mansard v Beyat [2021] EWHC 3355 and Talos v JSC [2014] EWHC 3977, and in Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203).
2. Where an invalid service method has been used and no valid service method has been used thereafter, such that the claim cannot proceed because there is no service through which the court may take jurisdiction over the defendant (this was the position in YA II PN v Frontera [2021] EWHC 1380, in Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm), in Barton v Wright Hassall [2018] UKSC 12, and in R (Koro) v CLCC [2024] EWCA 94).
3. Where an appropriate service method had been used, but out of time (only Pitalia and the Master’s previous judgment in this dispute concerned such a factual situation, but in Pitalia the defendant had filed an acknowledgement of service in time and made a set aside application in time).

The Master considered that in Pitalia the Court of Appeal was dealing with the case where there had been an acknowledgement of service, and therefore a potential waiver under CPR 11.5, unless a proper CPR 11 application was then made in time. But Pitalia was distinct from the present case, because here there was no acknowledgement of service in time.

The Master rejected the Defendant’s submission that an expired claim form remains in limbo, either until a validation order is made, with no obligation on the claimant to do anything (including to file any acknowledgement of service), or it is struck out. The Master’s analysis upon which he rejected the submission was as follows:

1. The first category of claim cited above, where only inappropriate service had been used, is qualitatively different from the other two situations. There has been no service in law at all, and nothing to trigger the CPR 10.3 requirement to file an acknowledgement of service.
2. The real question was whether the expiry of the CPR 7.5 time limit (i.e. 4 months from issue for service within the jurisdiction; 6 months for service without) means that there can no longer be any effective service of the claim form such as to start CPR time limits, including the CPR 10.3 time limit for filing an acknowledgment of service, running. In other words, was the claim form stuck in expired/dean/in limbo, or could it be effectively served subject to the ability of the defendant to make a CPR 11 challenge made within time.
3. The answer to the real question above was “really a matter of construction of CPR 7.5 and the various other rules (including CPR 10.3).” After considering the words used, their context, and statutory purpose, the Master came to the conclusion that the claim form was not “dead” or “in limbo”, and that it could be effectively served out of time by an appropriate service method so as to trigger the CPR 10.3 (filing acknowledgement of service) and CPR 11 (challenge to jurisdiction) time limits. The main reasons given by the Master for this conclusion were:

1. The relevant time limit relates to the completing of “a service step”. Completion of a service step under CPR 7.5(1) results in “deemed service” under CPR 6.14. The concepts of “service step” and “deemed service” are both linguistically distinct within the CPR from the time limit of four months from the date of issue for taking the service step.
2. The same linguistic distinction can be made with respect to CPR 7.5(2) (re service out of the jurisdiction)
3. The CPR 10.3 time limit for filing an acknowledgement of service runs simply from “service”, and not only from service which has taken place in a given time.
4. The above distinction is logical. A party will be able to tell whether they have been served by a proper method. They will not necessarily be able to tell whether the service step has been undertaken within time, and it would be odd if the defendant’s obligation to respond at all should be dependent upon a matter of which the defendant might well not have direct knowledge.
5. There is some limited support for this logic in Hoddinott at paragraph 23.
6. The Master considered the Supreme Court’s reference in Barton to “expired claim form” to be a simple case of shorthand for the expiry of the CPR 7.5(1) time limit, picked up from Pitalia. In Barton, there was no question of any CPR 11 being out of time. Neither Barton nor Pitalia engaged with, nor decided, the points before the Master.
7. It would seem inherently incongruous for a claim form served late to be both a “nullity” and yet “in limbo”. The Master noted that the word limbo did not appear in the CPR.
8. The decision in Koro makes clear that a CPR 11 application is required for a claim not served in time to be terminated. It would be odd if a claim could be permitted to remain in limbo indefinitely, particularly where a defendant with knowledge of the claim knows precisely what the defendant needs to do per the express provisions of CPR 10 and 11. To allow a defendant to wait for a claimant to obtain default judgment and only then take steps to resist the claim on the basis of no valid service within time seems to be a recipe for delay and confusion contrary to the overriding objective.

In those circumstances, the Defendant would need to secure an extension of time for filing an acknowledgement of service and/or challenging jurisdiction under CPR 11. That application would be considered in accordance with the now familiar CPR 3.9 relief from sanctions principles.

Inevitably, the Master could not see the Defendant’s application for relief as entirely separate from the Claimants’ application to rely upon Particulars of Claim served out of time. After granting the Claimants’ application (or rather not striking-out for failure to serve in time), the Master decided to refuse the Defendant’s application. Instead, he ordered that the Defendant should have permission to file a defence, on the basis that the delay had been very substantial, that there had been no good reason for the breach (despite acknowledging that the law was in a state of development).

Analysis and Comment

This was an interesting and novel take from Master Dagnall on an interesting and novel point of law. It seems very possible that the Defendant may appeal the judgment, but it is not an easy judgment to appeal. The policy of requiring defendants to pin their colours to the mast at the earliest stage of litigation is one that will resonate with the appellate courts, and is consonant with the CPR’s overriding objective and the principle of certainty. An imperfect analogy may be the obligation CPR 16 places on defendants to expressly plead any limitation defence they intend to rely upon. As for the relief from sanctions application, such case management decisions are notoriously difficult to challenge on appeal, and the Master’s analysis was careful and balanced (space did not allow for a detailed account of that analysis here).

Regardless of principle, the practical takeaway for defendants is clear: Defendants must not sit on their hands when served out of time. If a defendant suspects that a proper step for service has been taken late, they must take the appropriate action under CPR 10 and 11 to challenge the court’s jurisdiction within the very short time periods allowed under those provisions.

About the Author

Called in 2011, prior to pupillage Conor Kennedy spent two years working with a leading insurance law firm, gaining experience across regulatory, employment, leisure, travel and public sector teams. He has a varied civil practice and is accredited for Direct Access instruction, but has a particular interest and expertise in claims involving fundamental dishonesty.