Court Of Appeal Upholds Strike Out For Late Service Of Claim Form

• Published date: 09 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Norton Rose Fulbright
• Author: Andrew Judkins

In Pitalia & Anor v NHS England [2023] EWCA Civ 657 the Court of Appeal held a claimant could not resist its claim being struck out as a result of its failure to serve the claim form within the four month period in CPR 7.5. This was the case even though the strike out application had not been made correctly.

Background

Pursuant to CPR 7.5, a claimant must serve the claim form on the defendant within four months of it being issued by the court. If the claimant fails to do so, the defendant may challenge the claim on the basis that the claim form is no longer valid. The Court of Appeal has previously held that a strike out application by the defendant in these circumstances should be made under CPR 11 as an application to challenge the court's jurisdiction (Hoddinott and others v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203).

The facts of this case can be summarised as follows:

• The Claimants' claim form was issued on 12 August 2019. The Claimants' solicitors did not notice that the Court had not returned the issued claim form to them until the time for service had almost expired. They therefore served an unsealed claim form (i.e. not stamped by the court) under cover of a letter dated 27 November 2019.
• Two days before the expiry of the four month period for service, the Defendant's solicitors wrote to the Claimants' solicitors alerting them that the claim had not been effectively served. On 12 December 20219, the Defendant notified the Court that good service had not been effected.
• The Claimants served the sealed claim form on the Defendant on 7 January 2020, outside of the four month period of validity.
• The Defendant filed an Acknowledgment of Service dated 21 January 2020. On the Acknowledgment of Service form the Defendant ticked the box stating, "I intend to defend all of this claim" but not the box stating, "I intend to contest jurisdiction."
• On 24 January 2020, the Defendant made an application for the claim to be struck out due to non-compliance with CPR 7.5.

The Claimants sought to resist the Defendant's strike out application. They argued that the application was invalid because in the Acknowledgment of Service the Defendant had not challenged jurisdiction, so should be taken to have accepted service. Further, the Defendant had failed to make the application under CPR 11 and the Court had no power to rectify the Defendant's defective application under CPR 3.10 (the courts' general case management power to rectify procedural errors).

The...