Date:  15 September 2008

TICKING THE RIGHT BOXES  – IN FILING AN ACKNOWLEDGEMENT OF SERVICE

Once the claim form is served, the defendant will usually have 14 days in which to tick one of the three boxes on the acknowledgement of service form, fill in some straightforward details and return it to the court. Sounds simple?

A recent case of Hoddinott and others v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203 demonstrates just how easily the form can be misleading. In May 2006, the claimants issued a claim form in the High Court.  They claimed damages for trespass to and damage to the land and/or for nuisance and/or negligence and/or breach of the terms of the deed of transfer.  Particulars of claim were not attached to the claim form. CPR 7.5 (2) allows four months after the date of issue in which to serve the claim form.  Therefore the time for service of the claim form expired in September 2006.

Nine days before the expiry of the four month period, without notice to the Defendant the claimant’s solicitors made an application pursuant to CPR 7.6 (2) to extend the time for service of the claim form to November 2006.  In support of this application, the claimant submitted that an extension would allow him time to obtain expert evidence, to fully quantify and particularise the claim. The district judge granted the application and so the time for service was extended. 

The defendant then issued an application to set aside the order on the grounds that the claimants did not have a good reason to obtain an extension of time for service of the claim form.  The district judge considering the case felt that the reasons claimed by the claimants were strong for delaying the service of the particulars of claim but were not sufficient for extending the time for service of the claim form.  There was no reason why the claim form could not be served and an application made to extend the time for serving the particulars of claim.  The order allowing an extension of time for service was set aside.

The claim form and particulars of claim were later served on the defendant. On service the defendant’s solicitors filed an acknowledgment of service.  They ticked the box ‘‘I intend to defend all of this claim’’ and not the box that states ‘‘I intend to contest jurisdiction’’

CPR 11 provides that a defendant who intends to contest the court’s jurisdiction must apply for an order declaring that the court has no jurisdiction, or should not exercise any jurisdiction which it may have, within 14 days of filing his acknowledgement of service.  In the absence of an application ‘he is to be treated as having accepted that the court has jurisdiction to try the claim’.

On appeal the claimant contended that since the defendant had failed to tick the appropriate box and to apply for declaration, it could not apply to set aside the order.  The district judge disagreed on the basis that a party should not have to apply more than once for the same relief.  In other words, if the issue is the same then the court should not be burdened with duplicitous applications whose purpose is identical, as that was not the intention of the Civil Procedure Rules. 

The defendant argued that CPR 11 was not relevant, for the simple reason that the court’s territorial jurisdiction was not an issue.  It was just a case of applying the procedural rules as to service.  The court rejected this argument because in CPR 11 ‘jurisdiction’ refers ‘to the court’s power or authority to try a claim’.  Therefore if the defendant wants to dispute the court’s power or authority to try a claim on any basis (for example because the relevant limitation period has expired), then he must give notice of his intention to contest jurisdiction i.e. by ticking the right box, otherwise he will be taken to have waived any challenge to jurisdiction.  Refusing an order is as much an exercise of a court’s power as granting one.

The remainder of the judgement follows from its interpretation of CPR 11.  The rule is mandatory.  A failure to apply within 14 days after filing an acknowledgement for service for a declaratory order is fatal to any later argument that time for service of the claim form should not be extended.  The effect of CPR 11(5) is that the defendant was treated as having abandoned the application to set aside the order extending the time for service.  This conclusion was reinforced by the fact that in this case the defendant indicated on the acknowledgement of service that he did not intend to contest jurisdiction and did intend to defend the claim. 

All in all, Hoddinott shows that the rules on disputing jurisdiction will be applied very strictly, and holds some important lessons.  The first one is to check the limitation period, because if proceedings have been issued close to expiry of the limitation period then an extension of time may be worth challenging.  Second, check the date of issue and service. Third, if you are challenging jurisdiction pursuant to CPR 11 (1), then the case of Hoddinott highlights the importance of indicating on the acknowledgement of service by ticking the box that says ‘‘I intend to contest jurisdiction’’. Finally, an application to dispute jurisdiction must be made within 14 days after filing an acknowledgment of service.  In Lord Justice Dyson’s words, ‘if a claimant applies for and obtains an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril’. Hoddinott and others v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203, p14 para 50.

Nisha Sandhu