In United Utilities Group PLC -v- Hart (HH Judge Wood, Liverpool County Court, 24th September 2015*) a claimant was granted a “reprieve” after having served a photocopy of the claim form by mistake. However this is another one of those cases where the parties did not address the possible significance Court of Appeal decision in Hoddinott -v- Persimmon holdings. However the judge did have interesting matters to say in relation to civil procedure generally.
*available on Lawtel
The claimant, accidentally, served a photocopy of the claim form on the defendant rather than the original.
- The Court held that a claimant who accidentally served a photocopy claim form was entitled to an order under CPR 3.10.
- The Court did not address issues relating to Part 11 and whether the whole issue needed be considered as an issue of jurisdiction.
It was agreed that the action could not continue without some form of order from the court. The defendant applied to strike out under CPR 7.5. The claimant made a number of applications for relief .
The District Judge, and the Circuit Judge on appeal, granted the claimant relief under CPR 3.10. There is an extremely detailed examination of the case law relating to service of the claim form and relief from sanctions generally. The judge concluded that the use of CPR 3.10 was appropriate in these circumstances.
WHAT WAS NOT CONSIDERED
The issues here were similar to those considered in an earlier post on the decision in Cant -v- Hertz Corporation  EWHC 2617 where there was a passing mention to issues of jurisdiction in argument but no detailed ventilation of the issues.
DISPUTING THE JURISDICTION: THE APPLICATION IN THIS CONTEXT
In Hoddinott -v- Persimmon Homes (Wessex) Ltd  EWCA Civ 1203 the Court of Appeal held that a defendant that wished to take a point as to service had to make an application under CPR 11.
Is CPR 11 engaged?
Mr Exall submits that CPR 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 under CPR 7.6(3) and to make an order dispensing with service under CPR 6.9. Finally, Mr Exall draws attention to the definition of “jurisdiction” in CPR 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”.
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 in CPR 2.3 and in the provisions which govern service of the claim form out of the jurisdiction: see CPR 6.20 et seq.
But in CPR 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 hasjurisdiction 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 notexercise 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, namely CPR 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.
We would, therefore, hold that CPR 11 is engaged in the present context. This accords with what was said by Tugendhat J in Mason v First Leisure Corporation Plc  EWHC 1814 (QB) para 11, HH Judge Havelock-Allan QC in The Burns-Anderson Independent Network Plc v Wheeler,(Bristol District Registry Mercantile List, unreported 28 January 2005) para 45 and Uphill v BRB (Residuary) Ltd  EWCA Civ 60,  1 WLR 2070 para 34 (although in this last case, it was common ground that CPR 11 was engaged).”
COULD THIS HAVE APPLIED HERE?
The Court of Appeal gave Part 11 a very wide ambit in the Hoddinott decision. This could have had a number of implications (and greatly shortened) the arguments in cases such as this.
- If the Court has no jurisdiction then it cannot begin to exercise any discretion under the Civil Procedure Rules.
- If the Defendant did not make an application under Part 11 within 14 days of acknowledging service then it was deemed to have accepted jurisdiction.
There may be, at some time in the future, scope for arguing the extent to which Part 11 applies. However, given that parties are ignoring binding Court of Appeal authority on the issue, the law here is unlikely to develop.
CPR PART 11: DISPUTE JURISDICTION OR YOU ARE DEEMED TO HAVE ACCEPTED IT
CPR Part 11.
“(1) A defendant who wishes to –
(a) dispute the court’s jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.
(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.
(4) An application under this rule must –
(a) be made within 14 days after filing an acknowledgment of service; and
(b) be supported by evidence.
(5) If the defendant –
(a) files an acknowledgment of service; and
(b) does not make such an application within the period specified in paragraph (4),
he is to be treated as having accepted that the court has jurisdiction to try the claim.”
ONE FINAL POINT: WHY CAN’T COURT SEALS BE IN RED?
The mistake made here was an easy one. It is not difficult to see why the claimant attracted the sympathy of the judges. The copy claim form was identical in all respects to the original. All these problems would be solved if the courts adopted the old High Court practice of sealing documents in red. Red ink can’t be any more expensive. This simple step could solve a lot of problems.
- There are now unexploded grenades in your filing cabinet: serve proceedings promptly and properly.
- Service of the Claim Form: Further traps for the Unwary
- Late Service of the Claim Form, extensions of time and sleepless nights
- Service of the Claim Form: “last known address” points to watch
- Service of the Claim Form: Essential Points before the Essential Checklist
- A Dismal Catalogue of Confusion and Error
- Delaying Service of the Claim Form: Dicing with Procedural Death
- Service of the Claim form: Another claimant comes to grief
- Service of the Claim Form and a good reason: And so to Bed
- Service of the Claim Form can be a problem for defendants too.
- Claim Forms: Declaration that steps taken constitute good service.
- Service of proceedings the “essential checklist”.
- Service of proceedings: adding to the essential checklist