EWCA Civ 1203
This case raises several important points about service of a claim form and clarifies in particular uncertainty about how to complete an acknowledgment of service where effective service of the claim form is disputed. The claimant made a successful without notice application for an extension of time for service of the claim form before the 4 month period permitted under CPR 7.5 expired. The defendants applied to set aside the order extending time for service. They subsequently acknowledged service, ticking the box stating “I intend to defend all of this claim”. They did not tick the box stating “I intend to contest jurisdiction”. Their application to set aside the order was successful and the claimant appealed successfully to the Court of Appeal.
Acknowledgment of service
The Court of Appeal held that, by failing to tick the “I intend to contest jurisdiction” box and failing to issue an application disputing the court’s jurisdiction within 14 days under CPR 11, the defendants were to be treated as having accepted the court’s jurisdiction to try the claim. “Jurisdiction” under CPR 11 does not just mean territorial jurisdiction but the court’s jurisdiction to hear the claim in a more general sense.
Application for an extension of time
The court also considered the merits of the application for an extension of time for service of the claim form. The claimant’s justification for requiring extra time was that he was not yet able to serve full particulars of claim and costs could be saved by granting the extension of time. The courts have repeatedly said that the correct approach in such circumstances is to serve the claim form and apply for an extension of time for service of the particulars. The claimant argued that he had been lulled into a false sense of security by the fact that the extension of time had been granted. This argument has been given some support in previous cases but the Court of Appeal made it clear that it is bad and should be put firmly to rest.
Exercise of discretion
When it came to the exercise of the court’s discretion on an application for extension of time under CPR 7.6(2), the court held that, despite the points discussed immediately above, the claimant was entitled to the extension of time. There were two reasons for this. Firstly, the claim was not time-barred and would not be so for several years. Secondly, there was no prejudice to the defendants since the claimant had sent them a copy of the draft claim form within the four month period.
Comment: where the defendant realises that the service of the claim form is defective and wishes to contest the court’s jurisdiction over him on this ground, it has not previously been clear what should be done with the acknowledgment of service. In theory the defendant does not need to acknowledge service but in practice defendants are likely to be more comfortable doing so than letting a default judgment be entered which must then be set aside. What this decision makes clear is that the box contesting jurisdiction on the acknowledgment of service is applicable to all types of jurisdictional objection and not just territorial ones. It is therefore necessary, where service is potentially defective for any reason, both to tick this box in the acknowledgment of service and to issue an application within 14 days to set aside service of the claim form.