The CPR 3.10 cure: Court of Appeal prioritises substance over form in defective jurisdiction challenge

In a recent decision, the Court of Appeal, considered whether a failure to expressly state that an application to strike out a claim on the basis that the court lacked jurisdiction was being made pursuant to CPR 11, was a defect that could be cured by CPR 3.10. The Court of Appeal concluded that it could and the claim was struck out.

Facts

The case arose out of a commercial contract between two general practitioners (the claimants) and NHS England (the defendant). The claimants alleged non-payment of a grant and under-payment of rental reimbursement payments pursuant to the statutory regime. 

The Court of Appeal was not concerned with the merits of the case, as the appeal turned on purely procedural issues.

The sequence of relevant procedural events can be summarised as follows:

• The claimants issued a claim form on 12 August 2019 and on 27 November 2019, served an unsealed copy together with the particulars of claim on the defendant. 
• On 10 December 2019, two days before the expiry of the 4 month period for service, the defendant's solicitors wrote to the claimants' solicitors alerting them that the claim had not been effectively served, and followed up two days later with a letter advising the claimants' solicitors that good service had not been effected. 
• The sealed claim form was subsequently "served" on the defendant on 7 January 2020, some weeks after its period of validity had expired. 
• Ten days later, on 17 January 2020, the claimants applied for an order that valid service had been effected, whether by rectification of the claim form under CPR 3.10, or by permitting service by an alternative method under CPR 6.15, or by dispensing with the need for service under CPR 6.16.
• On 21 January 2020, the defendant filed an acknowledgement of service under cover of a letter stating its intention to apply to strike out the claim form for non-compliance with CPR 7.5. On the form, the defendant ticked the box stating: "I intend to defend all of this claim" but not the box stating, "I intend to contest jurisdiction."
• Three days later, on 24 January 2020, the defendant applied for the claim to be struck out due to non-compliance with CPR 7.5. The application made no reference to CPR 11.
• The District Judge dismissed the claimants' applications and granted the defendant's strike out application.

First Appeal

The claimants appealed on the ground that the District Judge had erred in law by not finding that the defendant had accepted jurisdiction and/or lost its right to challenge the contest jurisdiction either by failing to use the procedure provided by CPR 11 and/or by failing to tick the box in the filed acknowledgement of service form indicating an intention to contest jurisdiction.

HHJ Pearce, sitting in the High Court, dismissed the appeal holding that the defendant's application to strike out the claim form due to non-compliance with CPR 7.5 should be rectified under CPR 3.10 and treated as an application under CPR 11¹ for a declaration that the court had no jurisdiction to hear the claim.

The claimants went on to appeal HHJ Pearce's decision to the Court of Appeal.

Arguments before the Court of Appeal

The claimants sought to challenge the decisions below on two bases. The first is that, consistent with the decision in Hoddinott v Persimmon Homes (Wessex) Ltd², a failure to apply under CPR 11¹ for a declaration that the court has no jurisdiction when acknowledging service (or within 14 days of acknowledgement of service) precludes a defendant from challenging jurisdiction in any other way, such as by an application to strike out the claim even when the claim form has been served out of time.

The second basis is that, consistent with the decision in Vinos & Marks & Spencer plc³, the power to cure procedural defects under CPR 3.10 cannot be used to override an express prohibition in another rule. The claimants also argued that if their failure to serve the sealed claim form on time could not be cured by CPR 3.10 despite the serious consequences, then the same procedural vigour should be applied to the defendant. 

The defendant sought to distinguish Hoddinott from this case on the basis that the defendant's acknowledgement of service was accompanied by a covering letter indicating the defendant's intention to have the claim struck out and was followed three days later with an application to set aside service and strike out the claim. The defendant argued that there was nothing in the authorities that prevented the judge from treating that application, using the rectification power in CPR 3.10 if necessary, as if it had been made under CPR 11.

Decision of the Court of Appeal

Citing Steele v Mooney⁴, the Court of Appeal remarked that there is a valid distinction between making an application with defects and failing to make a necessary application at all. In this case, compliance with CPR 11¹ could have been achieved by the addition of minimal additional wording in the defendant's strike-out application which was implicit in the application that was being made: the defendant's solicitors' covering letter and its witness statement in support of the strike-out application clearly indicated the defendant’s intention to dispute the court’s jurisdiction to determine the claim.

The Court of Appeal disagreed with the claimants' interpretation of the Vinos principle and held that it must not be expanded into saying that CPR 3.10 cannot be used to rectify any breach of the CPR; otherwise the rule would be deprived of its utility.

Accordingly, the Court of Appeal decided that the defendants' strike out claim could be rectified under CPR 3.10 and treated as an application under CPR 11¹ for a declaration that the court had no jurisdiction to hear the claim. The distinguishing factor between the case at hand and Hoddinott was that the substance of the application had been made, but with defects.

It should be noted that the Court of Appeal held that the defendant's solicitors' failure to tick the box on the acknowledgement of service indicating an intention to contest jurisdiction was not fatal to their application for relief because, even if the box had been ticked, a CPR 11¹ application would still have been required to be made within 14 days. The Court of Appeal therefore concurred with HHJ Pearce in the High Court that a tick in the box is neither necessary nor sufficient as a basis for challenging jurisdiction.

Finally, the Court of Appeal drew a distinction in relation to procedural errors regarding the service of originating proceedings which would continue to be strictly applied and treated as a class of their own. In this regard, the claimants' argument 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 defendant, fell on deaf ears.

Accordingly, the Court of Appeal unanimously dismissed the claimants' appeal.

Comment

The decision reiterates that applications to dispute jurisdiction (for example because the claim form was served out of time) should be made under CPR Part 11.

The case also serves as a warning of the issues that can arise when leaving the serving of a claim form until the last minute, as failing to serve a sealed copy of the claim form within the timeframe stipulated in CPR 7.5 is likely to have dire consequences. The Court of Appeal was at pains to emphasise the particular importance of the timely and lawful service of originating process. Failure to comply with the rules about service is to be treated with greater strictness than other procedural errors and is unlikely be capable of being rectified under CPR 3.10.

¹ Pitalia & Anor v NHS England [2023] EWCA Civ 657 

² [2008] 1 WLR 806

³ [2001] 3 All ER 784 and followed in cases such as Ideal Shopping Direct Ltd v Visa Europe Ltd [2022] 1 WLR 1541

⁴ [2005] EWCA Civ 96