The Dekagram: 17th November 2025

This week brings a reminder from Sarah Prager KC (and the Court of Appeal) that for the purposes of service the date of issue of a claim form is the date on which it was sealed, not the date on which it was sent out by the court office; and a reminder from Megan Bithel-Vaughan (and the Court of Appeal) that where valid service has not taken place there is no requirement for a defendant to challenge jurisdiction under CPR Part 11.

Bali v (1)1-2 Couriers Limited, (2) Walsingham Motor Insurers Limited [2025] EWCV Civ 1413

Every now and again confusion arises as a result of the delay between a claimant sending proceedings to the court to be issued, and the court actually issuing them. Bali v (1)1-2 Couriers Limited, (2) Walsingham Motor Insurers Limited [2025] EWCV Civ 1413 is the latest in the line of authority produced as a result.

The chronology of events is crucially important:

2/12/19      road traffic accident leading to the claim.

22/11/22    claimant instructs solicitors.

29/11/22    claimant’s solicitors send claim form to court for issue.

2/12/22      court receives claim form.

                   limitation expires.

16/12/22    court requests further information regarding the claimant’s Help With Fees application.

15/3/23      claimant’s solicitors provide the further information sought.

23/5/23      letter of claim.

12/12/23    claimant’s reduced fee payment processed.

13/12/23    claim form sealed.

2/4/24        court posts the sealed claim form to claimant’s solicitors.

13/4/24      time period for service of the claim form expires.

15/4/24      claimant’s solicitors receive the sealed claim form.

16/4/24      claimant’s solicitors make an application for relief from sanctions, which is the wrong application.

31/5/24      claimant’s solicitors purport to serve proceedings on defendants.

22/11/24    claimant’s solicitors make an application for an extension of time for service of the claim form, which is the right application.

The Court of Appeal found that the date of issue of the claim form was the date on which it was sealed, and not the date when it was sent out by the court office. In the absence of any evidence that the seal had been impermissibly affixed to the claim form on a later date than the one which it bore, the date stamped on the sealed claim form was conclusive evidence of the date of issue. As a consequence, the Appellant’s solicitors received the claim form after the time for service prescribed by CPR Part 7.5 had already expired. It was therefore necessary in order to effect valid service for the Appellant’s solicitors to obtain an extension of time for service pursuant to CPR Part 7.6(3). You may well feel that any judge would bend over backwards to grant such an extension, but no! The extension was not granted, and the Court of Appeal upheld this decision:

“On the evidence, despite the fact that in practical terms the Appellant’s solicitors could not serve the claim form until it was in their possession, it was open to the Judge to conclude that they had not taken all reasonable steps to comply with CPR 7.5 for the reasons that he gave. In considering the reasonableness of the solicitors’ conduct the Judge was not constrained to look only at the period after the claim form came into their possession. Nor was he obliged to look only at the period between its issue and its receipt. He was entitled to take into account the entire background, including the fact that proceedings were brought on the very last day of the limitation period, and the lengthy delays which occurred between the lodging of the unsealed claim form and the issue of the sealed claim form, which he found were largely, though not exclusively, due to inactivity on the part of the solicitors.”

The fact that the delay in sealing was due in no small measure to failings on the part of the Appellant’s solicitors was fatal to the claim; she must now therefore proceed with a professional negligence claim against her former representatives.

In paragraphs [44] to [53] of the judgment the Court examined the period over which efforts to serve proceedings should be judged, and concluded that both pre-issue and post-issue delay should be considered:

“The first question to be addressed is whether the relevant period over which the court evaluates what, if any, steps the claimant (or their legal representatives) took to effect service under CPR r.7.5 and whether those steps were reasonable differs, depending on whether one is dealing with an application for an extension of time under CPR r.7.6(3), or an application for an extension of time for service in a case where that rule is applied by analogy. In principle, I consider that the relevant period should be the same, although, when the court is considering whether the behaviour in question was reasonable, it may expect a greater level of proactivity on the part of the legal representatives of a party facing a deadline where the time for service has already begun to run before that party lodges the unsealed claim form with the court…

Once the case reaches a point where there is no impediment to issue and yet the claim form is not received, there will be a foreseeable risk that the claimant or their solicitor might receive it too late to be able to serve it in time. The longer the time that elapses after the point where there is no impediment to issue, the higher that risk will be. A reasonable person in that situation would seek to find out whether the claim form had been issued and, if it had, whether it had been sent out to him, and if so, when. In cases where the limitation period has expired and so the situation cannot be cured by bringing fresh proceedings, it is all the more imperative to seek answers to those questions and to chase the court office if they are not forthcoming…

Although a person cannot serve a claim form until it is in his possession, the attempts he made to obtain it (in order to be able to serve it) are plainly relevant to the question whether he has taken all reasonable steps to serve it in time.”

The Judge and the Court of Appeal agreed that in this case the Appellant’s solicitors should have done more to chase the court for the sealed claim form after sending it to the court; they should have been ‘far more proactive’.

Comment

The outcome in this case is another in a series of cases on service which underline the risks associated with leaving issuing proceedings to the end of the limitation period; where unexpected difficulties arise, the courts are likely to take the view that the claimant has no one to blame but himself. It is therefore imperative that claimants’ representatives not only issue with plenty of time to spare, but maintain communication with the court thereafter.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories in travel law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last few decades. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases, including serious sexual assault and cases involving children.

Robertson v Google LLC [2025] EWCA Civ 1262

This Court of Appeal case considered the appropriate method of remedying failures to serve outside of the jurisdiction within the relevant time period.  In this specific case, the failure to serve form N510 meant that service under CPR Part 6.34(2)(b) had not been properly effected within the relevant time period.

In the court of first instance, upon realising this failure, Mr Robertson (the Claimant/Respondent) had made an application for relief from sanctions under the well-known Denton test in CPR 3.9.  On behalf of Google LLC (the Defendant/Appellant), it was argued that relief from sanctions was not the appropriate mechanism, and instead, Mr Robertson must satisfy the test concerned within CPR Part 7.6(3).  The court of first instance granted the application for relief from sanctions.  This decision was appealed on behalf of Google LLC, with Mr Robertson filing a cross-appeal concerning costs.

In the Court of Appeal, in submissions which were described by Coulson LJ as “ingenious”, Mr Robertson sought to argue that what the judge did was in fact give retrospective permission to dispense with Form N510.  Mr Robertson also argued that Form N510 was an insignificant form, or a tick box exercise.  The Court made clear that the failure to serve form N510 was not a meaningless procedural error.  Instead, as it was a document signed with a statement of truth, misstatements or discrepancies are likely to be materially important to litigation, and are thus, of the utmost importance.  The Court also rejected the argument that there had been retrospective permission given to dispense with service, as the terms of the original order had made clear that it was the application for relief from sanctions which had been granted.

The Court of Appeal found that the correct test which should have been applied was CPR 7.6, which is explicitly concerned with extending time for service. The Court further concluded that provisions of rule 3.9 or rule 6.34(2) should not be used to undermine the regime set out by CPR 7.6.  This has important implications for cases where there is a failure to serve, as a key limb of CPR 7.6 is the requirement that the party must have acted promptly.  This case makes clear that alternative provisions of the CPR cannot be used to circumvent that requirement to act promptly.

A further argument advanced on behalf of Mr Robertson was that by failing to serve an acknowledgement of service and omitting to make an application challenging jurisdiction under CPR 11(1), Google LLC had effectively accepted the jurisdiction of the Court, and was unable to take any point about defective service.  This argument was also roundly rejected, and the Court clarified that the obligation to serve an acknowledgement of service only arose upon the successful service of the claim.  The main appeal was therefore successful.

In dealing with the cross-appeal on costs, the Court of Appeal reinforced that courts have a wide ranging discretion in terms of costs, and that appeal courts will be reticent as to interfering with cases where costs decisions were made within that discretion.  The cross-appeal was therefore rejected.

About the Author

Megan Bithel-Vaughan gained tenancy having completed pupillage at Deka Chambers. She has already been led by Sarah Prager KC in a case of significant value involving complex issues around the interpretation of the Montreal Convention, and in particular the interplay between the operation of the partial compensation cap and contributory negligence.