Do Limitation Defences Challenge The Court's Jurisdiction? The Law Following The Case Of Dunn v Parole Board CA (2008)

Following the case of Hoddinott v Persimmon Homes [2007]

EWCA Civ 1203, reported in our February edition of

Liability News, practitioners were concerned that if Defendants

wished to rely on a limitation defence then, in accordance with

CPR Part 11; notification should be given on the

Acknowledgement of Service Form confirming that the Defendant

was disputing the Court's jurisdiction and an application

had to be made within 14 days. This caused great concern

amongst Defendants, as often it is not possible to establish

whether there is a limitation issue until much later in the

claim, and often not until after the Claimant's medical

records have been received. Defendants were concerned that

Claimants would be able to use this argument to prevent

limitation defences being raised at a later stage, or that they

would be forced to make applications to strike out claims

without having sufficient evidence before them.

Following the case of Dunn v Parole Board [2008] EWCA

Civ 374, the Court of Appeal has thankfully closed the

door to Claimants being able to raise this argument by deciding

that "limitation provisions provide a defence to the

claim; they do not go to jurisdiction" (Lord Justice

Thomas at paragraph 20).

In Hoddinott, the Defendant was deemed to have

accepted service correctly, despite an outstanding application

by the Defendant to set aside an order extending time for

service of the Claim Form. Whilst this was waiting to be heard

the Claimant served the Claim Form and the Defendant filed the

Acknowledgement of Service simply noting they intended to

defend the claim. The matter found its way to the Court of

Appeal, which held that by doing so the Defendant was accepting

the court's jurisdiction and so they had effectively

abandoned their application. Guidance was also given to the

meaning of jurisdiction in that it refers to the court's

"power or authority to try a claim". It is not

strictly limited to territorial jurisdiction. A Defendant must

follow the procedure set out in CPR 11 if it wants to dispute

the court's power or authority to try a claim on any basis,

including service.

In a recent article in the Law Society Gazette, District

Judge Taylor commented upon Hoddinott and considered

that its implications were "far reaching".

He stated that "a defendant who wants to persuade the

court not to make an order, for example, because the relevant

limitation period has expired or because of some procedural

defect, must give notice of his...