Is a defendant obliged to take steps in response to an invalidly served claim?

The Court of Appeal's decision in Bellway Homes Limited v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347 provides clarification in relation to a defendant’s procedural obligations when faced with defective service.

Hot on the heels of Robertson v Google [2025] EWCA Civ 1262, the Bellway decision provides further authority that in circumstances where a claim form has not been validly served in time, a defendant is not obliged to file an acknowledgment of service or make an application to contest jurisdiction under Part 11 of the Civil Procedure Rules (CPR). However, both Robertson and Bellway have left some important questions unanswered; not least, when is an application under Part 11 required or still worth considering?

Facts

The claimant (C) brought a claim for personal injury following a fire at a premises where Bellway (D) was the developer. C issued proceedings three days before the expiry of the primary limitation period. The parties agreed a six-month extension for service of the claim form and particulars of claim, which was confirmed in a court order. However, C’s solicitors were apparently “rather casual” about the new deadline for service, to the point where they sent an email to D’s solicitors at 2:17pm on the date in question to request a further three-month extension. They clearly started to panic as the 4pm deadline approached, and they therefore attempted to serve the claim form only (with no particulars) by fax and/or DX.

D's solicitors confirmed that they were instructed to apply to strike-out the claim under CPR 3.4(2)(c), ie, on the basis that there had been a failure to comply with a rule, practice direction or court order. C then applied for a declaration that the claim form had been served in time, or alternatively for relief from sanctions and/or an extension of time.

First instance decision

At first instance, Master Dagnall found that the claim form had not been validly served and refused to grant C relief or an extension. However, C successfully argued that, despite the fact that valid service had not taken place, D was still obliged to file an acknowledgment of service (AoS) and make an application to contest jurisdiction. The judge refused D’s application to file an AoS and/or make an application under Part 11 out of time, and the claim was therefore allowed to continue.

Court of Appeal decision – no valid service

Much of the decision at first instance dealt with whether there had in fact been valid service. On appeal, the CoA endorsed Master Dagnall’s finding that leaving the claim form out for collection by the DX service did not amount to “posting, leaving with, delivering to or collection by the relevant service provider”, for the purposes of CPR r. 7.5(1). “Leaving with” the relevant service provider (here DX) requires a positive and irrevocable act of transmission. Leaving the claim form on a receptionist’s desk for collection at some point in the future cannot satisfy that requirement, since until the point of collection it can still be taken back and amended.

In the leading judgment, Coulson LJ also endorsed the principle (established in Barton v Wright Hassall LLP [2018] UKSC 12) that if a claim form has not been validly served in time, the only remedy for a claimant is to seek an extension of time pursuant to CPR r. 7.6. The relief from sanctions regime under r. 3.9 and 3.10 is irrelevant.

So where did that leave D?

Having agreed that the claim form had not been served in time and that C was not entitled to an extension, the CoA went on to consider whether D was nonetheless obliged to file an AoS and/or an application to contest jurisdiction; and whether, in failing to do so, D should be deemed to have accepted the court’s jurisdiction to try to the claim.

Coulson LJ referred to several existing authorities, including:

• Hoddinott v Persimmon Homes [2007] EWCA Civ 1203 where, on the one hand, the defendant had filed an AoS confirming that it intended to defend the claim and, in the absence of a Part 11 application, was treated as having accepted the court’s jurisdiction; and
• Pitalia v NHS [2023] EWCA Civ 657 where, on the other hand, the fact that the defendant’s strike-out application did not expressly refer to Part 11 was found not to be fatal because it was clear from the surrounding material that the court’s jurisdiction was being challenged.

It is potentially a subtle distinction and it is likely to be fact specific, but in practice if it is clear that jurisdiction is in issue then the court should, in light of Pitalia and now Bellway, infer that an application to strike-out includes an application under Part 11.

In Bellway, Master Dagnall (at first instance) placed considerable reliance on the CoA’s decision in R (Koro) v County Court at Central London [2024] EWCA 94, in which the defendant first raised the issue of defective service almost two years into a protracted application to strike-out on other grounds. The CoA did not allow the defendant to “hijack” an existing hearing, and found that the only way in which jurisdiction could be contested in the circumstances was via an application under Part 11. Once again, that scenario was distinguished in Bellway, where the question of service was expressly raised, by C, almost immediately and jurisdiction was therefore “front and centre” from the outset.

However, none of the above authorities deal with the situation where a defendant takes no steps at all. Which brings us onto Robertson and Bellway. In both cases, the defendant was responding to the claimant’s application to remedy invalid service. It is therefore perhaps unsurprising that the CoA found that an application under Part 11 would effectively be superfluous, since the issue of jurisdiction already had to be determined.

How far does the authority go?

In Bellway, Coulson LJ found that: “as a matter of common sense, where a claimant has not served a claim form in time, and no extension of time has been granted by the court, the defendant is not the subject of the court’s jurisdiction.”

Andrews LJ added: “Shiblaq makes it plain that a defendant is not obliged to acknowledge service when service has not been validly effected. It would be absurd if the rules of civil procedure operated in such a way as to effectively force a defendant to submit to the jurisdiction of the court despite the fact that the claim form had never been validly served on him, especially if, as in this case, an extension of time for service had been applied for and refused.”

It is the words “especially if” in the above passage which give rise to some unanswered questions. On its face, the decision in Bellway appears to be authority for the proposition that a defendant who is faced with a claim form which they consider has not been validly served will never need to take any steps to respond. However, in Koro, while the facts were different and the decision was therefore distinguished, Stuart-Smith LJ concluded that “such proceedings do not cease to exist merely because they had not been served in time.” That decision has not been overturned, and it therefore leaves a potential lacuna when it comes to cases where there has been no valid service but the claimant does not take any positive steps to remedy the position.

In those circumstances, can a defendant simply sit back and do nothing? If they do, they have to accept the risk that the claimant will obtain judgment in default, which they will then need to apply to set aside. But does that open them up to the possibility of a finding similar to that in Koro where the fact that jurisdiction was not raised, by either party, at the outset was fatal?

There must therefore still be circumstances, the above scenario being just one example, where an AoS followed by a proactive application to contest jurisdiction remains the safer option, even if there is an argument that it is not strictly required. At the very least, defendants who are faced with such a situation should consider expressly raising the issue of jurisdiction with their opponents as soon as possible and perhaps invite them to make an application for an extension under r. 7.6.

While Robertson and Bellway will be useful authorities in many cases involving defective service, as ever – and as the authorities before them demonstrate - the best course of action is likely to be fact specific.