“(3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served – (c) by any other method permitted by the law of the country in which it is to be served.”
“If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.” 57. Further, the majority regarded there as being a clear requirement, underCPR 6.15 (4)(c) for any order retrospectively validating service to specify the period for filing an acknowledgment of service. In that case, the order validating service had not done so, and judgment in default had been entered immediately. But it is clear that the majority considered that in any case in which there is a retrospective validation of service the court should at that point give the defendant a further period in which to acknowledge service. At paragraph 30 Treacy LJ said: “In those circumstances where, ex hypothesi, a defendant cannot know that he has been validly served, to deprive him thereafter of any period during which he can acknowledge service in the usual way seems to me unfair and unjust. In effect it denies a defendant part of the due process involving the ability to contest a claim once the claimant has established, through aCPR 6.15 (2) order, that the mechanism requiring him to respond if he is to contest the claim has been triggered.” 58. The majority of the Court of Appeal held that what had been said in paragraph 43 of Kaki v National Private Air Transport Co was not applicable and not binding on the court, because Kaki did not deal with a default judgment and did not considerCPR 6.15 (4). 59. I consider that I am bound by, and even if not should follow, the decision of the majority of the Court of Appeal in Dubai Financial Group. That requires that, having retrospectively validated service, I should set a time for the filing of an acknowledgment of service. It is implicit inCPR 6.15 (4) that the period specified for filing an acknowledgment of service (or admission or defence as the case might be) should be after the date on which the order is made.CPR 6.15 (4)(c) does not refer to a deemed date on which the acknowledgment of service should have occurred, and may be contrasted withCPR 6.15 (4)(b), which refers to specification of the deemed date on which the claim form was served; and in referring to the period “for filing” it is using prospective language. This gives effect to the fact that it would, as the majority of the Court of Appeal in the Dubai Financial Group case said, be unfair and unjust for there to be no period after the defendant can know that there has been valid(ated) service in which he can enter an acknowledgment of service. 60. On that basis, the default judgment must be set aside underCPR 13.2 , because it was entered at a point when the time for acknowledgment of service had not expired. I will set a time in which there should be acknowledgment of service, which will be 7 days from the date on which this judgment is handed down.”
“27 It therefore follows that the method of service adopted in this case was not permitted by the law of Turkey withinCPR 6.24 (a). Even if it was permitted under Turkish law for service of domestic proceedings, it was not a method permitted for service of foreign proceedings. Indeed, it was a method expressly excluded by reason of the Turkish objection registered under the Hague Convention and could not therefore be within the scope ofCPR 6.24 (a). Nor was it a method of service designated byCPR 6.25 (1) as appropriate where the claim form is to be served on a defendant in a country which is a party to the Hague Convention. 28. Accordingly, subject to the Claimant’s applications underCPR 3.10 , for the court to remedy errors in service and underCPR 6.9 to dispense with service, this judgment in default of acknowledgement of service must be set aside underCPR 13.2 . I must therefore now consider these applications.”
“58 Further, even if one took the view thatCPR 6.9 could be applied retrospectively to cure defective service in a case such as this, its application would not have the effect of retrospectively imposing on the defendant a duty to acknowledge service. Ex hypothesi there never has been any service such as to engage that duty at the time when it would fail to be performed. It follows that there is no way in which the retrospective application of the rule can found a basis for obtaining judgment in default. 59. For these reasons, the defendant’s application to set aside the judgment in default succeeds. The claimant’s applications in respect ofCPR 3.10 andCPR 6.9 are refused. The order is therefore that the judgment in default is set aside underCPR 13.2 . It follows that no discretionary order underCPR 13.3 , whether in the terms set out in paragraph 46 of the First Judgment or otherwise, is called for. The defendant is entitled as of right to an order underCPR 13.2 . The claimant should be left to a method of service specified by the Hague Convention and to which Turkey has registered no objection.”
“RULE 31—(1) The court has jurisdiction to entertain a claim in personam if, and only if, the defendant is served with process in England or abroad in the circumstances authorised by, and in the manner prescribed by, statute or statutory order. 11–004 Service of process. This Rule expresses the general principle that in England the foundation of the court’s jurisdiction to entertain a claim in personam is service of process. Every action commences with the issue of a claim form.5 When process cannot legally be served upon a defendant, the court can exercise no jurisdiction over the defendant. In proceedings in personam the converse of this statement holds good, and whenever a defendant can be legally served with process, then the court, on service being effected, has jurisdiction to entertain the claim against that defendant. Hence in proceedings in personam the rules as to service define the limits of the court’s jurisdiction. The methods of service are laid down by the Civil Procedure Rules (‘‘CPR’’), and provision is made for service by an alternative method (previously called ‘‘substituted service’’) on individuals who are defendants where personal service cannot be effected.6”
“1. The appellant, a litigant in person, purported to serve the claim form in these proceedings on the defendant’s solicitors by email, without obtaining any prior indication that they were prepared to accept service by that means. It is common ground that this was not good service. As a result, the claim form expired unserved on the following day. The question at issue on this appeal is whether the Court should exercise its power retrospectively to validate service. To date, the District Judge, the County Court judge and the Court of Appeal have declined to do so. If their order stands, the result will be that Mr Barton can proceed with his claim only by a fresh action. The present appeal has been conducted on the assumption that such an action would be statute-barred… 8. The Civil Procedure Rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is to be found inCPR 3.9 , which confers a power to relieve a litigant from any “sanctions” imposed for failure to comply with a rule, practice direction or court order. These powers are conferred in wholly general terms, although there is a substantial body of case law on the manner in which they should be exercised: see, in particular, Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) (Practice Note)[2014] 1 WLR 3926 (CA), esp at para 40 (Lord Dyson MR and Vos LJ), Global Torch Ltd v Apex Global Management Ltd (No 2)[2014] 1 WLR 4495 (SC(E)). The short point to be made about them is that there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the courts.CPR rule 6.15 is rather different. It is directed specifically to the rules governing service of a claim form. They give rise to special considerations which do not necessarily apply to other formal documents or to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a claim form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court’s jurisdiction.”
“149. In paragraphs 21-25 of Hoddinott it was held that CPR11 was engaged in this context: “21. Mr Exall submits thatCPR 11 has no relevance in the present context. He says that no issue of “jurisdiction” arises here. He argues that the claimants are in difficulty not because the court does not have jurisdiction to determine the claim, but because they have failed to comply with the rules of court as to service. A defendant who seeks to set aside an order made without notice or to argue that the claim form was served out of time is not challenging the court’s jurisdiction, but is merely applying the procedural rules. The court does have jurisdiction to deal with a claim even where the claim form is served out of time. For example, it has jurisdiction retrospectively to extend the time for service underCPR 7.6 (3) and to make an order dispensing with service underCPR 6.9 . Finally, Mr Exall draws attention to the definition of “jurisdiction” inCPR 2.3 : it means “unless the context requires otherwise, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales”. 22. In our judgment,CPR 11 is engaged in the present context. The definition of “jurisdiction” is not exhaustive. The word “jurisdiction” is used in two different senses in the CPR. One meaning is territorial jurisdiction. This is the sense in which the word is used in the definition inCPR 2.3 and in the provisions which govern service of the claim form out of the jurisdiction: seeCPR 6.20 et seq. 23. But inCPR 11 (1) the word does not denote territorial jurisdiction. Here it is a reference to the court’s power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR 11 (1)(a)) or that the court should not exercise its jurisdiction to try a claim (CPR 11 (1)(b)). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment,CPR 11 (1)(b) is engaged in such a case. It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namelyCPR 7.5 (2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim. 24. We would, therefore, hold thatCPR 11 is engaged in the present context. This accords with what was said by Tugendhat J in Mason v First Leisure Corporation Plc[2003] EWHC 1814 (QB) para 11, HH Judge Havelock-Allan QC in The Burns-Anderson Independent Network Plc v Wheeler, (Bristol District Registry Mercantile List, unreported28 January 2005 ) para 45 and Uphill v BRB (Residuary) Ltd[2005] EWCA Civ 60 ,[2005] 1 WLR 2070 para 34 (although in this last case, it was common ground thatCPR 11 was engaged).” 150. In paragraphs 26-29 of Hoddinott it was held that statutory waiver consequence followed if an acknowledgement of service was filed and no application made in time under CPR11 even if the defendant had applied to set aside an order extending time for service as the wording of CPR11 was clear: “26. We doubt whether the Rule Committee addressed the problem that has arisen in this case. But in our view, the interpretation adopted by the district judge was not open to him. Subject to the point discussed at para 28 below, the language ofCPR 11 is clear. Paragraph (1) permits a defendant to apply to the court for an order declaring that the court has no jurisdiction to try the claim or that the jurisdiction should not be exercised. Paragraph (2) provides that a defendant who wishes to make such an application “must first file an acknowledgment of service in accordance with Part 10”
“151 This analysis was affirmed by the Court of Appeal in Pitalia where it was also recognised that a defendant could seek to avoid the error of having failed to make a CPR11 application by making an application and seeking an extension of time (CPR3.1) or a CPR waiver (CPR3.10) of the error even though this would tend to involve a need to obtain relief from sanctions (CPR3.9 and Denton). In Pitalia an application had been made in time but was defective in form. At paragraphs 32 to 38 it was said: “32. The following principles emerge from the authorities in this area: (i) Barton v Wright Hassall LLP makes clear the particular importance attached by the Supreme Court to the timely and lawful service of originating process. Failure to comply with the Rules about such service is to be treated with greater strictness than other procedural errors. In the present case, if the Respondent’s solicitors had made their application of24 January 2020 expressly seeking a declaration underCPR 11 (1) that the court has no jurisdiction to try the claim, there would have been very little that the Appellants could have said in response (ii) On the other hand, the principle established in Vinos and followed in cases such as Ideal Shopping is thatCPR 3.10 cannot be used to override an express prohibition in another Rule. An example of such an express prohibition is inCPR 7.6 (3). If a claimant applies retrospectively for an order to extend the time for service of a claim form the court may make such an order only if the remaining conditions laid down by the rule have been fulfilled. If they have not been fulfilled then Rule 3.10 is simply not available. But the Vinos principle must not be expanded into saying thatCPR 3.10 cannot be used to rectify any breach of the CPR. Otherwise the Rule would be deprived of its utility. WhenCPR 3.10 is invoked it presupposes that some error of procedure has been made. Without it civil litigation would be even more beset by technicalities than it is already. (iii) There is a valid distinction between making an application which contains an error, and failing to make a necessary application at all. Steele v Mooney[2005] 1 WLR 2819 is a useful illustration. In that case the claimants sought the defendants’ consent to a draft order extending time for service of the Particulars of Claim. That consent was forthcoming, but the extension of time was useless since the claimants had omitted to refer to the claim form. This court, distinguishing Vinos, held that the application for an extension of time was clearly intended to be for service of the claim form as well as the particulars. The subsequent application for relief was not in substance an application to extend time for service of the claim form, but an application to correct the application for an extension of time which had been made within the time specified for service and which by mistake did not refer to the claim form. 33. Hoddinott lays down that if a Defendant acknowledges service without making an application underCPR 11 (1) for an order declaring that the court has no jurisdiction (or should not exercise its jurisdiction) to try the case, this is taken to be an acceptance of jurisdiction. Whatever one might think of Hoddinott, the decision is binding on us, and like the judge I do not consider that it has been impliedly overruled by Barton. The judge was also right to reject the argument, based on the use of the word “expired” in Barton, that there is an analogy between the expiry of a claim form and the death of a living creature. Plainly in some circumstances an expired claim form can be revived: seeCPR 7.6 (3). 34. I agree with the judge that the failure of the Defendant’s solicitors, when completing the acknowledgment of service form, to tick the box indicating an intention to contest jurisdiction is not fatal to their application for relief. Even if the box had been ticked an application would still have been required to be made within 14 days.CPR 11 (1) does not say that a box on a form must be ticked: it says that an application must be made. As the judge put it, a tick in the box is neither necessary nor sufficient as a basis for challenging jurisdiction. 35. The critical question, therefore, is whether the Defendant’s application of24 January 2020 can, by the use ofCPR 3.10 , be treated as having been made underCPR 11 (1). I do not accept Mr Trotman’s argument that such rectification would offend against the Vinos principle.CPR 11 (1) does not contain clear mandatory wording equivalent to that laid down byCPR 7.6 (3) that a retrospective extension of time may be granted “only if” certain conditions are fulfilled. 36. The failure to make express reference toCPR 11 (1) in the letter of21 January 2020 or the application of24 January 2020 was in my view an error capable of rectification underCPR 3.10 . The three documents - the acknowledgment of service, the covering letter and the application to strike out supported by witness statements – together made the Defendant’s intentions clear. This was in substance an application to stop the case on the grounds that the Claimants had failed to serve the claim form in time. The case is much closer to Steele v Mooney than to Vinos or Hoddinott. 37. I am not impressed by the argument on behalf of the Appellants that if their failure to comply with the rules is to be treated so strictly despite the serious consequences, the same procedural rigour should be applied to the Respondent. That argument is contrary to the decision of the Supreme Court in Barton. Errors in issuing and serving originating process are in a class of their own. 38.I would also reject the Appellants’ alternative argument based on Denton v TH White Ltd. I do not regard the failure of the documents served on 21 and24 January 2020 to make express reference toCPR 11 (1) as a serious and significant transgression. It was, rather, just the sort of technical error for whichCPR 3.10 was designed.”
“In paragraphs 64-70, the Court of Appeal said: “Relevant principles Defective service and its consequences 64. It was wrong of Ms Longson to submit and wrong of HHJ Baucher to accept that defective service means that proceedings do not exist. Proceedings that have been properly issued and are properly constituted exist whether or not they have been properly served. They do not cease to exist either because they are not served in time or have been served defectively. We consider this to be axiomatic. 65. The procedure for disputing the Court’s jurisdiction is laid down byCPR Part 11 . For present purposes, the most relevant provisions ofCPR Part 11 areCPR 11 (1)-(4) which should be well known: [CPR11 was then set out] 66. In Hoddinott v Persimmon Homes (Wessex) Ltd[2007] EWCA Civ 1203 at [23], the Court of Appeal held that the word “jurisdiction” inCPR Part 11 does not denote territorial jurisdiction but is a reference to the court’s power or authority to try a claim: “But inCPR r 11 (1) the word does not denote territorial jurisdiction. Here it is a reference to the court’s power or authority to try a claim. There may be a number of reasons why it is said that a court has no jurisdiction to try a claim (CPR r 11 (1)(a)) or that the court should not exercise its jurisdiction to try a claim:CPR r 11 (1)(b). Even if Mr Exall is right in submitting that the court has jurisdiction to try a claim where the claim form has not been served in time, it is undoubtedly open to a defendant to argue that the court should not exercise its jurisdiction to do so in such circumstances. In our judgment,CPR r 11 (1)(b) is engaged in such a case. It is no answer to say that service of a claim form out of time does not of itself deprive the court of its jurisdiction, and that it is no more than a breach of a rule of procedure, namelyCPR r 7.5 (2). It is the breach of this rule which provides the basis for the argument by the defendant that the court should not exercise its jurisdiction to try the claim. ” 67. In Caine v Advertiser and Times Ltd and Ors[2019] EWHC 39 (QB) Dingemans J held that Hoddinott was binding authority for the proposition that an application that the court should not exercise its jurisdiction to try a claim must be made byCPR Part 11 . Subsequently, Nugee LJ sitting in the Intellectual Property List of the Patents Court expressed a degree of uncertainty about the breadth of the Hoddinott principle in a case where a defendant had not served an acknowledgement of service and, as Nugee LJ found, there was a separate route provided byCPR r.7.7 (3). 68. Given the breadth of the terms ofCPR Part 11 and the absence of any alternative route elsewhere in the CPR which the CPS could have adopted or did adopt, we would hold thatCPR Part 11 provides the procedure for disputing the Court’s jurisdiction in a case such as this. Accordingly, if the CPS wanted to assert defective service, it should have followed that procedure, served an Acknowledgment of Service and made an application pursuant toCPR Part 11 within 14 days thereafter. 69. Even if we were to be wrong and there were to be some other route by which the CPS could have or could now raise the assertion of defective service, it would not be safe to speculate about what the outcome of such an application would be. It is not to be assumed (and could not be assumed by HHJ Baucher or the Deputy Judge when considering whether to give permission in these proceedings) that the end result would be that the Court would decline to exercise jurisdiction. Many different considerations might arise of which three of the most obvious are the nature of the defect in service (as to which see [7.iii)] above), the promptness (or otherwise) with which the point was taken by the CPS, and whether the CPS had waived the defective service. As Ms Milligan fairly and correctly pointed out, on any such application (whenever and however made) the Court would have a range of case management options from which to select the most appropriate, including (a) retrospectively dispensing with service, (b) extending time for service of an amended Claim Form to cure the defect or (c) making a retrospective or prospective order underCPR 6.15 . This is not intended to be an exhaustive catalogue of the Court’s available powers in an appropriate case.”
“33. One of the submissions made was that the court could not deal with the claim at the hearing at all , because the jurisdiction had been challenged in the acknowledgments of service of the first, third and sixth defendants, filed on6 December 2021 , and, under CPR Part11, those defendants have 14 days after filing such acknowledgments to make their application to contest jurisdiction. So nothing could happen until the challenge was disposed of, some time after20 December 2021 . The first point to make in dealing with that submission is that it can apply only so far as concerns the first, third and sixth defendants. The second, fourth and fifth defendants have intimated no such challenge to jurisdiction, and the disposal hearing in relation to the claims against them cannot be prevented from going ahead on that basis. I turn therefore to consider the argument made from the point of view of the first, third and sixth defendants… 38. My conclusion is supported by the decision of Popplewell J (as he then was) in Taylor v Giovani Developers Ltd[2015] EWHC 328 (Comm) , another case on a jurisdictional challenge where the acknowledgment of service had been filed out of time. The judge said: "14. The first question which arises is whether the First Defendant can apply for an extension of time of nine days within which to mount the jurisdiction challenge without also seeking an extension of time for entering an acknowledgment of service. Rule 11(2) provides: 'A defendant who wishes to make such an application [to dispute the court's jurisdiction or argue that the court should not exercise its jurisdiction] must first file an acknowledgment of service in accordance with Part 10.' 15. On behalf of the First Defendant, Mr. Harding argued that an acknowledgment of service which complied with the formalities of Part 10 satisfied Rule 11(2) , whether or not it had been served timeously. On behalf of the Claimants, Mr. Davies submitted that in order to qualify under Rule 11(2) , an acknowledgment of service must comply in all respects with Part 10, and an acknowledgment of service which does not comply with the time provisions set out in Part 10 is not an acknowledgment of service in accordance with Part 10. 16. The Claimants' submissions are to be preferred on this question. The wording of Rule 11(2) is clear. The acknowledgment of service must be "in accordance with Part 10". There is no reason to treat that as requiring compliance with only some parts of Part 10 and not others. 17. If an acknowledgment of service is not served within time, then there must be some means by which a Claimant can have that acknowledgment of service treated as ineffective unless the Court grants an extension of time. The effect of the submissions advanced on behalf of the First Defendant by Mr. Harding was that if a defendant entered an acknowledgment of service, albeit out of time, that was sufficient to trigger the right to defend the claim, the right to challenge jurisdiction and the right to resist a judgment in default of acknowledgment of service. He was unable to point to any provision of the Rules under which a Claimant would be entitled to have the acknowledgment of service set aside for being out of time. That seems to me to point clearly towards a need on the part of the defendant to seek an extension of time if the acknowledgment of service is to be treated as effective for its main purposes, which are to enable the claim to be defended or to enable a challenge to jurisdiction to be advanced, and to prevent judgment being entered in default of acknowledgment of service. 18. I am fortified in that analysis by the judgment of Flaux J in Talos Capital Ltd. & Ors. v. JSC Investment Holdings XIV Ltd.[2014] EWHC 3977 (Comm) in which he had to consider an application for an extension of time both for acknowledgment of service and for time in which to mount a Part 11 jurisdiction challenge, in circumstances which are analogous to the present case. He treated an application for extension of time in relation to the acknowledgment of service as being necessary because otherwise the acknowledgment of service would be treated as a nullity and would be capable of being set aside as such: see in particular paras. 30, 33 and 44 of that judgment." 39. For these reasons, in my judgment, the argument fails.”
“30. Although Collyer Bristow have been instructed since 3rd October, and although Mr. Tolley told me at the hearing on 31st October that his clients intended to challenge the jurisdiction and seek to set aside the proceedings against them, no acknowledgement of service was served by the second defendants until 12th November, that acknowledgement of service being the prerequisite of any challenge to the jurisdiction underCPR Part 11 . Accordingly, that acknowledgement of service was filed 75 days late. The time for acknowledgement of service having expired on 29th August, the application under Part 11 , insofar as it was made in the Commercial Court, should have been filed 28 days later, by 26th September. 31. The first question I have to consider is whether to give the second defendant permission to serve the acknowledgement of service out of time and to grant the necessary extension. In support of his application, Mr. Tolley submits that this is not a case where the second defendant is seeking relief against sanctions underCPR 3.9 . He says the court is simply exercising its discretion underCPR 3.1 (2)(a) so that the principles established in Mitchell v News Group Newspapers[2013] EWCA Civ. 1537 ,[2014] 1 WLR 795 , as clarified in Denton v TH White Limited[2014] EWCA Civ. 906 ,[2014] 1 WLR 3926 , simply do not apply. In support of that proposition he relies upon the judgment of Moore-Bick LJ in the recent Court of Appeal decision of Altomart v Salford Estates (No.2) Ltd[2014] EWCA Civ. 1408 . That was a case where a respondent was seeking an extension of time to file a respondent's notice in the Court of Appeal underCPR 52.5 (2)(b) . Mr. Tolley relied upon para.10 of that judgment, where Moore-Bick LJ said: “In my view it is clear from the language of rule 3.8 that it is concerned with a sanction imposed by the very rule, practice direction or order of which the applicant is in breach, hence the use of the words “imposed by the rule, practice direction or court order.”
“In Mitchell itself, however, the sanction from which relief was sought had not been prescribed as a consequence of default by any rule practice direction or previous order of the court. It was a sanction imposed by the court in the exercise of its discretion for a failure to comply with a rule that itself prescribed no sanction for default. To that extent it might be thought that the case did not fall within the natural ambit of rules 3.8 and 3.9 . Liberty to apply for relief from that sanction appears to have been given in order to allow fuller argument at a later date when more time could be made available; otherwise one might have thought that an appeal against the order imposing it would have been the more appropriate course. Nonetheless, the application proceeded under rule 3.9 and laid down principles which are intended to govern applications under that rule. The question remains, however, whether they were intended to govern applications, such as the present, for extensions of time where no sanction is prescribed for the default. 13. The consequences of failing to file a respondent's notice within the prescribed time are not spelled out in the rules, so on the face of it there is no sanction within the meaning of that expression in rules 3.8 and 3.9 from which the respondent needs relief. However, in a number of cases dating back more than a decade the courts have recognised the existence of implied sanctions capable of engaging the approach contained in rule 3.9 and therefore now the Mitchell principles. The first was Sayers v Clarke Walker[2002] EWCA Civ 645 ,[2002] 1 WLR 3095 …”
“In Mitchell itself the court made it clear at paragraphs 49-51 that it considered that similar principles applied in other cases of failure to comply with the rules, describing an application for an extension of time for service of particulars of claim as being in substance an application for relief from sanctions underCPR 3.9 , and since then the concept of the implied sanction has played a prominent part in a number of decisions…”
“Accordingly, I think it is now established that an application for permission to appeal out of time is analogous to an application under rule 3.9 and is therefore to be decided in accordance with the same principles.”
“The purpose of the respondent's notice is to enable Altomart to rely at the hearing of the appeal on grounds for upholding the judgment that were not before the court below. If an extension of time is not granted it will be unable to do so. To that extent that area of dispute will not come before the court. In my view for a respondent to be prevented from pursuing the merits of a case it wishes to pursue on the appeal is no more or less of an implied sanction than it is for an appellant to be prevented from pursuing its case on appeal. In my view, therefore, the Mitchell principles apply with equal force to an application for an extension of time in which to file a respondent's notice.” 33. In my judgment, that reasoning is equally applicable to the second defendant's application for an extension of time in which to file an acknowledgement of service. The consequence of not being granted an extension would be that the acknowledgement of service filed on 12th November will have to be set aside as a nullity, and the second defendant will not be permitted to mount his challenge to the jurisdiction. That is clearly an implied sanction, just as the respondent's inability to pursue its case on the merits was in Altomart . Accordingly, in my judgment, the Mitchell principles apply. 34. The applicable principles are clarified in Denton v White and usefully summarised in Moore-Bick LJ's judgment in Altomart at paras.19 and 20, where he says as follows: “More recently the rigour of the decision in Mitchell has been tempered by the decision in Denton . In that case the court recognised that Mitchell had been the subject of criticism and, while holding that the guidance it provided remained substantially sound, sought to explain in rather more detail how it should be interpreted and applied. In doing so it identified three stages of enquiry: (i) identifying and assessing the seriousness and significance of the default which engages rule 3.9; (ii) identifying its cause; and (iii) evaluating all the circumstances of the case, including those specifically mentioned…”
“The court clearly contemplated that if the default is not serious and significant, relief is likely to be granted.”
“158. In my judgment, it is clear from these authorities, which are binding upon me, that: i) Defective, or even no, service does not render a Claim or the Claim Form a nullity or cause it to be automatically struck-out. The Claim continues in existence unless and until the Court makes an order declining or refusing to exercise jurisdiction (and where CPR11 provides that a consequential striking-out order can then be made) ii) Such an order (as far as one arising from defective or non-service is concerned) will only be made if there is an acknowledgment of service from a relevant defendant and subsequent application under CPR11. While the need for an acknowledgement of service is dealt with only in Koro (there having been acknowledgments of service in the other cases), I consider that it is clear from the wording of CPR11 and from the Court of Appeals decisions in Hoddinott @ paragraph 26 and in Koro (which is very highly persuasive even if that element can be said to be obiter) iii) If there has been an acknowledgment of service but no application within the 14 days provided for by CPR11 there will be a statutory waiver by the relevant defendant of the service points unless relief from sanctions (and any other appropriate relief) is obtained by that defendant… 161. The present position is that there are no acknowledgments of service and no applications on the part of either of the Defendants. In those circumstances, it seems to me that I simply cannot decide the question of whether a jurisdiction challenge would succeed as none has been made. In theory I could waive the various failures to file acknowledgments of service under CPR3.10 and to issue application notices under CPR3.10 and CPR23.3(b) but that has not been argued fully (if at all) before me and would deserve substantial consideration including as to potential prejudice to the Claimants. Taking such a course summarily would also be, at first sight, inconsistent with the Court of Appeal's general statement in Koro and also various other decisions such as Talos v JSC[2014] EWHC 3977 , Taylor v Giovani[2015] EWHC 328 and Mansard v Beyat[2021] EWHC 3355 @ paragraphs 17 and 18 to the effect that defendants require permission to file acknowledgments of service out of time and especially where such is to be the first stage of their mounting a jurisdiction challenge. 162. However, I do think that I can decide the question of whether or not the Defendants require permission to file acknowledgments of service out of time. The Defendants submit that they do not because (a) the Claim Form was not served in time (CPR7.5(1)) and the November Order) and (b) the Particulars of Claim were not served in time (CPR7.4 and the November Order). They say that therefore the period in CPR10.3 for filing acknowledgements of service has never started to run. 163. I disagree, for the following reasons: i) The Claim Form is not rendered a nullity by reason of defective or late service (see above). I do not see why it should follow from the CPR7.5|(1) or the CPR7.4 time for service requirement that eventual service out of time is a nullity. In my judgment it is service (assuming that it complied with the method of service rules, and which was clearly the case here, in relation to both the First Defendant and, if it is to be held to be SRL, the Second Defendant) albeit late service ii) CPR10.1(3)(b) makes clear that an acknowledgment of service must be filed if a defendant wishes to contest jurisdiction. While I accept that in some circumstances a defendant may wish to make an application (a) where a claim form has not been served properly at all or (b) a claim form has been served in time in accordance with the CPR (e.g. a forum non conveniens or a revocation of permission to serve out of the jurisdiction application – and various cases cited by the Claimants relate to such circumstances which are in my view potentially conceptually different from that of a claim form which has been served late); it is a common case that a claim form has been served late. There is nothing in CPR10 to indicate that an acknowledgment of service is not required in such circumstances if a jurisdictional point is to be taken in consequence iii) For a defendant to have to act within the combined CPR10 and CPR11 time-limits is entirely consistent with the policy of the rules. That policy is that a defendant may seek to challenge jurisdiction on service (or other) grounds but must do at an early first stage (see e.g. Texan Management v Pacific2009 UKPC 46 @ paragraph 69 ). That results in certainty and avoids the possibility of a claim proceeding with a challenge to jurisdiction only being made at a stage later than close to the start. The rules achieve that objective by requiring a speedy acknowledgment of service followed speedily by an application to challenge jurisdiction. While it may be possible in a case of defective service for a defendant to say that there has been no service at all and that they therefore do not have to do anything until something which amounts to service has taken place, I cannot see it as being consistent with the statutory policy or scheme for them to be able to do nothing where actual service has eventually taken place even if out of time. That would also lead to immense uncertainty in the course of litigation iv) Although Koro does not actually pose, or answer, this direct question; my answer is at least consistent with the statements that a defendant who wishes to dispute jurisdiction must get on and do so in accordance with the CPR.”
“165. I accept that there are various decisions which suggest that late filing or service of procedural material at the early stage of the litigation renders the material itself a nullity. That is said to be the case in relation to late filed acknowledgments of service in Talos @ paragraph 33. 166. However, I do not see the (late) service of the Particulars of Claim (or of the Claim Form) as rendering them a nullity or, more importantly, such that they prevented the period for filing an Acknowledgment of Service under CPR10.3 from running. In my judgment, when the statutory scheme is considered as a whole, and essentially for the reasons given above, the effect of proper service (even if out of time) is that the statutory scheme does operate and the time for filing an acknowledgment of service does begin once that service has taken place. This does not result in any unfair prejudice as far as a relevant defendant is concerned, they have been served and the CPR provide that the consequence of service is that the defendant must file an acknowledgment of service (which is not a burdensome matter) and has a period of time to then either defend or to challenge jurisdiction.”
“1 Following handing-down of this judgment, but before any further or consequential hearing, I have located the decision in Cunico v Daskalakis[2018] EWHC 3382 . At paragraphs 27-34 Andrew Baker J considered the position under CPR11 where an acknowledgment of service had been filed late or not at all and held (paragraphs 31 and 34) that for CPR11 to be used in such circumstances required some judicial discretionary intervention as the requirements of CPR11 had not been met. At paragraphs 32-33 he held that the statements in paragraph 33 of Talos either were directed to a court setting aside an acknowledgment of service so as to (only) then render it a nullity or were wrong. I regard those paragraphs, which are in any event binding upon me, as being correct, and entirely consistent with this judgment.”
“27. The first provision to note, not considered in the authorities summarised above, is CPR3.10, by which: "Where there has been an error of procedure such as a failure to comply with a rule or practice direction— (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error." 28.CPR 10.1 -10.2 provide, so far as material, as follows: "10.1 Acknowledgment of service (1) This Part deals with the procedure for filing an acknowledgment of service. (2) … (3) A defendant may file an acknowledgment of service if — (a) he is unable to file a defence within the period specified in rule 15.4 ; or (b) he wishes to dispute the court's jurisdiction. (Part 11 sets out the procedure for disputing the court's jurisdiction.) 10.2 Consequence of not filing an acknowledgment of service If — (a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3 ; and (b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14 , the claimant may obtain default judgment if Part 12 allows it." The closing words, " if Part 12 allows it ", mean that, contrary to one of Marketing's submissions,CPR 10.2 does not say that default judgment may be entered after a (late) acknowledgment of service has been filed. That depends on what Part 12 says and in particular, therefore, on whatCPR 12.3 (1) means. 29.CPR 10.5 requires an acknowledgment of service to be signed by the defendant or the defendant's legal representative (CPR 10.5 (1)(a) ) and to include the defendant's address for service (CPR 10.5 (1)(b) , with a cross-reference toCPR 6.23 for rules as to addresses for service). 30. Turning toCPR Part 11 ,CPR 11 (1) provides that a defendant who wishes to dispute jurisdiction or argue that the court should not exercise jurisdiction may apply for an order declaring that the court has no jurisdiction or should not exercise jurisdiction, but byCPR 11 (2) , " A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10 ". If a defendant files an acknowledgment of service but does not make an application underCPR 11 (1) within 14 days of that filing, " he is to be treated as having accepted that the court has jurisdiction to try the claim " (CPR 11 (5) ). (In the Commercial Court, that limit is 28 days rather than 14 days:CPR 58.7 . ) 31. Dealing with that language of Part 11 straight away, filing acknowledgment of service " in accordance with Part 10 " is a procedural requirement for the making of an application underCPR 11 (1). That is whatCPR 11 (2) says. A late-filed acknowledgment of service is not filed " in accordance with Part 10 ". So a defendant who applies underCPR 11 (1) without having first filed a timely acknowledgment of service requires an extension of time or a waiver of the procedural requirement. That explains Talos Capital , supra . It means that the dismissal of the Part 11 application in that case did not require the setting aside of the acknowledgment of service, although it was in fact set aside. (For the avoidance of doubt, I think it clear that Flaux J was setting aside the acknowledgment of service independently of its ceasing to have effect underCPR 11 (7) once the challenge to jurisdiction failed.) 32. Flaux J said at [33] and [44] that he was setting the acknowledgment of service aside " as a nullity ", although (so far as I can see) there was no application to set it aside and, as I have observed already, setting it aside was not necessary to the decision of the applications before Flaux J. His references to a late acknowledgment being a 'nullity' are the uses of language that have had an influence in some of the default judgment cases, as I explain below. An acknowledgment of service set aside by the court ceases to have effect and, in law, is thereupon treated as a nullity. That is what setting something aside means. But if Flaux J meant to suggest that an acknowledgment of service is a nullity when filed late, prior to being set aside and whether or not it is ever set aside, then, with respect, I cannot agree; and to the extent that at [33] and [44] he expressed the view that if an extension of time was refused, the acknowledgment of service had to be set aside (with no exercise of discretion involved), that was unnecessary to the decision before him and again I do not agree. There is no provision to that effect in the CPR andCPR 3.10 (a) is to precisely contrary effect. 33. Even the statement that upon being set aside, an acknowledgment of service is treated as a nullity may require a little care. Assuming it to have been proper in form, a late-filed acknowledgment of service will have given an address for service for the defendant complying withCPR 6.23 . If the acknowledgment of service is set aside, that will cease to be an address for service, but service of documents in the proceedings previously effected by using that address is not retrospectively invalidated. 34. There is a clear and important difference between, firstly, whether some effect or consequence obtains under the CPR only upon some step being taken in timely fashion and, secondly, whether a step not taken in timely fashion may be set aside, undoing the effect or consequence it otherwise had or would have had. Thus, where there has not been timely acknowledgment of service, a defendant is disabled from applying underCPR 11 (1) (absent an extension of time or waiver) becauseCPR 11 (2) requires timely acknowledgment before an application underCPR 11 (1) , not because the acknowledgment of service is a nullity. The existence of that requirement on the language ofCPR 11 (2) , with its consequence under Part 11 for a late acknowledgment of service, is uninformative as to whether a defendant who files a late acknowledgment of service " has not filed an acknowledgment of service ", which is the language ofCPR 12.3 (1) to be construed here.”
“7.5 (1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form… (2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.”
“6.14 A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).” “6.40 (1) This rule contains general provisions about the method of service of a claim form or other document on a party out of the jurisdiction. Where service is to be effected on a party in Scotland or Northern Ireland (2) Where a party serves a claim form or other document on a party in Scotland or Northern Ireland, it must be served by a method permitted by Section II (and references to ‘jurisdiction’ in that Section are modified accordingly) or Section III of this Part and rule 6.23(4) applies. Where service is to be effected on a party out of the United Kingdom (3) Where a party wishes to serve a claim form or other document on a party out of the United Kingdom, it may be served – (a) by any method provided for by – (i) Omitted (ii) rule 6.42 (service through foreign governments, judicial authorities and British Consular authorities); or (iii) rule 6.44 (service of claim form or other document on a State); (b) by any method permitted by a Civil Procedure Convention or Treaty; or (c) by any other method permitted by the law of the country in which it is to be served. (4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the claim form or other document is to be served.” “10.3 1) The general rule is that the period for filing an acknowledgment of service is— (a) 14 days after service of the particulars of claim where the defendant is served with a claim form which states that particulars of claim are to follow; and (b) 14 days after service of the claim form in any other case. (2) The general rule is subject to the following rules— (a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33); (b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and (c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference toPractice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).”
“3.9 (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence.”
“The Master draws attention to the decision in Thomas v Home Office2006 EWCA Civ 1355 and also to the White Book notes at 11.1.5. and 11.1.8 (and case-law following including e.g. Macari v Chequered Flag2021 EWHC 3175 ) and wishes to have it clarified as to whether either or both Defendants contest the Claimant's Application and/or are making any applications of their own and as to what is the position regarding Acknowledgments of Service.”
“"The Master has considered the emails attached and draws attention to CPR Parts 10 and 11 and such decisions as Hoddinott v Persimmon2007 EWCA Civ 1203 , Joe Macari v Chequered Flag2021 EWHC 3175 and, most recently, Pitalia v NHS2023 EWCA Civ 657 (although the Master is presently approving a transcript of his own judgment in a further case in this area). It is for the parties to consider what, if any, applications or requests to make but the Master regards it as appropriate (at least at present) to direct a hearing of the Claimant's application (which is the only one which has been made in accordance with CPR23)… The Master is not prepared to grant a stay in the absence of agreement where, at first sight and provisionally only, CPR11 contains its own relevant procedure, but will consider any Application Notice. The Master notes that the defendants' solicitors are not presently on the court record." Then, when I adjourned the previous hearings (leading up to the Previous Judgment) following the presenting by the parties of their main submissions on8 November 2023 , with the intention that final submissions would be delivered and a judgment would be delivered on8 February 2024 , I made an order, paragraph 3 of which read (with subsequent paragraphs providing a timetable for evidence etc.): “Should the Defendants wish to rely on any further evidence or make any application, they must issue (if appropriate), file and serve the relevant material before 4pm on22 December 2023 . The question of permission will be considered at the part-heard hearing.”
“15. I now turn to the Pantelli decision and the ramifications of it. As is clear from the decision itself, Mr Justice Coulson struck out the Defendant's Defence and Counterclaim because the Defendant had failed without excuse to comply with an “unless” order (see Paragraph 19 of the judgment). Other relevant parts of the judgment are: “16. There is a second, separate reason why I am in no doubt that those parts of this Amended Defence and Counterclaim that purport to be allegations of professional negligence should be struck out. That is because, even though the work that is now the subject of these purported allegations was carried out three years ago, there is no expert evidence of any kind to suggest that that work was carried out inadequately, or was in some way below the standard to be expected of an ordinarily competent quantity surveyor. Not only is it simply not good enough to turn a positive contractual obligation into an allegation of professional negligence by adding the words “failing to” to the obligation, but it is also wholly inappropriate to do so in circumstances where there is no expert input to allow CCD to make such an allegation in the first place. “16. There is a second, separate reason why I am in no doubt that those parts of this Amended Defence and Counterclaim that purport to be allegations of professional negligence should be struck out. That is because, even though the work that is now the subject of these purported allegations was carried out three years ago, there is no expert evidence of any kind to suggest that that work was carried out inadequately, or was in some way below the standard to be expected of an ordinarily competent quantity surveyor. Not only is it simply not good enough to turn a positive contractual obligation into an allegation of professional negligence by adding the words “failing to” to the obligation, but it is also wholly inappropriate to do so in circumstances where there is no expert input to allow CCD to make such an allegation in the first place. 17. Save in cases of solicitors' negligence where the Court of Appeal has said that it is unnecessary (see Brown v Gould & Swayne [1996] 1 PNLR 130 ) and the sort of exceptional case summarised at paragraph 6-009 – 6–011 of Jackson & Powell, Sixth Edition, which does not arise here, it is standard practice that, where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise. That is a matter of common sense: how can it be asserted that act x was something that an ordinary professional would and should not have done, if no professional in the same field had expressed such a view?CPR Part 35 would be unworkable if an allegation of professional negligence did not have, at its root, a statement of expert opinion to that effect. 18. On a related point, also referred to during the course of argument, I note that the Code of Conduct at paragraph 704 prevents a barrister from drafting any document which contains “any statement or fact or contention which is not supported by the lay client or by his instructions [or] any contention which he does not consider to be properly arguable”
“I believe that the facts stated in this [document being verified] are true”