Procedure For Challenging Jurisdiction Includes Challenges Based On Validity Of Service, Not Just International Jurisdiction

• Published date: 25 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Herbert Smith Freehills
• Author: Ms Maura McIntosh and Gayatri Gogoi

The High Court has held that a defendant who wished to argue that proceedings had not been served in time, because orders extending time for service of the claim form should be set aside, should have used the procedure for challenging jurisdiction under CPR Part 11 rather than applying to strike out the claim. The court was, however, prepared to correct the defendants' procedural error under CPR 3.10: The Tintometer Ltd v Pitmans [2024] EWHC 370.

The case is a useful reminder that CPR 11 is not limited to challenges based on the court's international jurisdiction. It should be used whenever a party wants to challenge the court's jurisdiction to hear a claim, including on grounds of improper service.

Where a defendant acknowledges service of proceedings and then fails to bring a jurisdiction challenge under CPR 11, it can result in the defendant having waived any challenge to jurisdiction, as shown by the Court of Appeal's decision in Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203 (considered here). While the court may be prepared to correct a defendant's procedural error under CPR 3.10, particularly if (as in the present case) it has made clear its intention to dispute the claimant's entitlement to have the case heard, a defendant in this position will be at the mercy of the court's discretion.

The decision also confirms that a party who is added or substituted to proceedings does not have standing to apply to set aside orders made before they became a party under CPR 3.3(5), on the basis that those orders were made without a hearing. However, a new party may be able to apply to vary or revoke a previous order under CPR 3.1(7) on the basis that there has been a material change of circumstances since the order was made - and, in some circumstances, the party's addition to the proceedings may itself amount to such a change.

Background

The claim arose in relation to alleged negligent advice by solicitors in relation to the amendment of a pension scheme in 2008/9. The claimants were the employer and the pension scheme trustee.

The claim form was not issued until April 2021. Therefore the claimants had to rely on s.14A of the Limitation Act 1980, which provides a limitation period of three years from the earliest date on which the claimants had the knowledge required to bring an action for damages. The defendants named on the claim form were Adcamp LLP (Adcamp), which was the successor to the previous unincorporated partnership known as Pitmans Solicitors, and BDB Pitmans LLP (BDBP), which acquired the Adcamp business in December 2018.

In light of the limitation issues, the claimants issued the claim form without engaging in pre-action correspondence and then sought to comply with the professional negligence...