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Hoddinott & Ors v Persimmon Homes (Wessex) Ltd, Court of Appeal, 21 November 2007

20 December 2007
The issues

Acknowledgement of Service – disputing Court’s jurisdiction – whether filing an Acknowledgement of Service without an Application under CPR Rule 11(1)b amounted to acceptance of Court’s jurisdiction.

The facts

The claim amounted to a dispute over land between the parties. The Claimants claimed damages for trespass, nuisance, negligence and breach of the terms of a deed of transfer. A Claim Form was issued. The time for service of the Claim Form expired on the 22nd September 2006. On the 13th September 2006, without notice to the Defendant, the Claimant’s solicitors applied for an extension of time for service of the Claim Form to 22nd November 2006. The Application was granted by the District Judge in the Bristol District Registry on the 13th September 2006 and time was extended until 22nd November 2006. On the 14th September 2006 the Claimant’s solicitors sent a copy of the Claim Form to the Defendant’s solicitors “for information purposes only”. On the 2nd October 2006 the Defendant issued an Application to set aside the Order of the 13th September 2006, on the grounds that the Claimant did not have a good reason to obtain an extension of time. That Application was listed for Hearing on 21st December 2006. On the 21st November 2006 the Claim Form and Particulars of Claim were served on the Defendant. The Defendant’s solicitors, on the 28th November 2006, filed an Acknowledgement of Service. They ticked the box “I intend to defend all of this claim”. They did not tick the box “I intend to contest jurisdiction”. When the Defendant’s Application came before the Court, District Judge Daniel found that the reasons put forward for extending the time for service of the Claim Form were ”wholly unacceptable”. The reasons claimed might be strong reasons for delaying the service of the Particulars of Claim but not sufficient reason for extending the time for service of the Claim Form. The District Judge found that the Defendant did not have to make an Application under Part 11 (a Defendant who wishes to dispute the Court’s jurisdiction had to apply to the Court for an Order declaring that the Court had no jurisdiction). The District Judge found that, on this occasion, CPR 11 was irrelevant because the Defendant had already made an Application prior to service of the Claim Form on it. He therefore set aside the Without Notice Order.

The Claimant appealed.

The decision

CPR 11 was relevant and engaged in this context. The word “jurisdiction” is used in two different senses in the CPR. One meaning is territorial jurisdiction, which is the sense in which it is used in CPR 2.3 and in the provisions governing service of the Claim Form out of the jurisdiction. In CPR 11 the word does not denote territorial jurisdiction but is a reference to the Court’s power or authority to try a claim. Even if it were right that the Court had jurisdiction to try a claim where the Claim Form had not been served in time, it was undoubtedly open to a Defendant to argue that a Court should not exercise its jurisdiction to do so in such circumstances.

Did the Application to set aside the Order extending time for service render an Application under CPR 11 by the Defendant unnecessary?

The District Judge had taken the view that it could not be the intention of the CPR to insist on a succession of Applications to be made seeking the same relief and that therefore it could not be necessary to make an Application under CPR 11 (which has to be made within 14 days of filing the Acknowledgement of Service) where an Application to set aside the Order extending time in the first place has already been made.

This interpretation was not open to the District Judge however. The language of CPR 11 was clear. CPR 11 provided that a Defendant that wished to seek an Order declaring that the Court had no jurisdiction to try a claim or that the jurisdiction should not be exercised had to file an Acknowledgement of Service first, and therefore make the Application within 14 days and that if it failed to do so then the Defendant would be treated as having accepted that the Court had jurisdiction. The meaning was clear and unqualified. Accordingly, the effect of no Application having been made was that the Defendant was deemed to have accepted the Court’s jurisdiction and to have abandoned the Application to set aside the Order extending the time for service. This conclusion was re-enforced by the fact that, on this occasion, the Defendant had indicated on its Acknowledgement of Service that it did not intend to contest jurisdiction. The Appeal would therefore be allowed. Whilst that was sufficient to dispose of the Appeal there was another issue relating to the exercise of the District Judge’s discretion. There was no good reason for the Claimant not to have served the Claim Form within the 4 month period. The false sense of security given by the Without Notice Order was not a relevant factor to be taken into account. Mason v First Leisure Corp Ltd was wrong in its suggestion that this was a legitimate point to consider. If a Claimant obtained an extension of time without notice to the Defendant he did so at his peril. A Claimant should know that an Order obtained in such circumstances might be set aside and could take no comfort from the fact that the Court had made the Order. He could not be heard subsequently to say that it was the Court’s fault that the Order was made.

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