High Court declines to extend time for defendant to challenge court's jurisdiction, despite claim form having been served out of time

A High Court Master has held that service of a claim form out of time but via an appropriate method will be effective, with the result that the time limits for acknowledging service and challenging the court's jurisdiction will begin to run: The Occupiers of Samuel Garside House v Bellway Homes Ltd [2025] EWHC 772 (KB).

This is the first judgment that has considered the consequences of a claim form being served out of time by a valid method, and a defendant's subsequent failure to file an acknowledgment of service and apply to challenge the court's jurisdiction within the time limits set out in the rules. Given the court's acceptance that the case raised "an important and novel point of law", it is unlikely to be the last.

As a Master's decision it will not bind other courts, but the decision suggests that where a claim form is served using an appropriate service method, but out of time, the claim is not in a permanent state of "limbo" such that it cannot proceed. It remains in existence unless and until the court makes an order refusing to exercise jurisdiction, which requires the defendant to take positive steps to challenge jurisdiction under CPR 11.

The key practical takeaway for defendants faced with late service of a claim form is that they should not assume that service has been ineffective. Instead, they should file an acknowledgment of service and apply to challenge jurisdiction within the relevant time periods in order to prevent the claim from proceeding.

Background

The underlying dispute concerned a serious fire at a block of flats known as Samuel Garside House. The claimants were the occupiers of various flats in the building and brought claims in negligence and breach of statutory duty against the developer/constructor and the corporate architect of the building.

The claim form was issued on 6 June 2022. Time for service was extended by a consent order requiring the claimant to serve the claim form by 4pm on 21 April 2023. In the event, the claim form was served by an appropriate method (DX) but out of time – although the claimants left the claim form in reception at 3.49pm for collection by the DX provider, collection took place after the 4pm deadline.

Considering the claim to be in "limbo", the defendants did not take any steps to acknowledge service or dispute the court's jurisdiction. Instead, they asserted in correspondence that the claim form had not been served in time and that any application for leave to serve out of time would be met with a strike-out application.

The claimants applied for a declaration that the claim form had been validly served, alternatively for relief from sanctions for any failure to serve in time and/or an extension of time. In June 2024, the High Court (Master Dagnall) held that the claim form had not been served in time, and the court did not have jurisdiction to grant a retrospective extension of time for service under the strict test set out at CPR 7.6, as the claimants had not taken "all reasonable steps" to serve in time.

Despite this finding, the court held that late service did not render the claim form a nullity or cause it to be automatically struck out. Instead, the claim continued in existence unless and until the court made an order declining or refusing to exercise jurisdiction. Such an order could only be made, however, where the defendants had acknowledged service and subsequently made an application disputing the court's jurisdiction under CPR 11.

Accordingly, the first defendant (the claimant having settled with the second defendant) applied for a retrospective extension of time to file an acknowledgment of service for the purpose of challenging the court's jurisdiction.

Decision

The High Court (Master Dagnall) dismissed the defendant's application.

The Master noted that this was "an important and novel point of law", with only one previous case dealing with the issue of a claim form being served by an appropriate method but out of time – Pitalia v NHS [2023] EWCA Civ 657. However, that case did not grapple with exactly the same issues currently before the court as the defendant had acknowledged service in time and then applied to strike out the claim (although it had failed to challenge jurisdiction under CPR 11).

Having considered the various authorities advanced by both parties, the court distinguished the present situation from the following:

1. Where a claim form is validly served in time, but the defendant seeks to challenge jurisdiction out of time: In such a case, the defendant's only option is to seek to file a late acknowledgement of service and application challenging jurisdiction.
2. Where an invalid method of service is used to serve the claim form, and no valid method is later used: In such a case, there is no valid service at all, and the claim cannot proceed. The subsequent time limits, eg for filing an acknowledgment of service, do not start to run.

In contrast to the above, the court held that, as a matter of construction of the relevant court rules, service of a claim form out of time but via an appropriate service method "does not render the claim form 'dead' or 'in limbo'". Rather, such service triggers the time limits for acknowledging service under CPR 10.3, and subsequently applying to challenge the court's jurisdiction under CPR 11. Unless the claim is set aside following a timely jurisdictional challenge application (following a timely acknowledgement of service), the claim will proceed.

Consequently, to prevent the claim from going forward, the defendant needed to obtain a retrospective extension of time to file an acknowledgment of service and make a jurisdictional challenge. Since the time periods had already expired, the court had to answer the question of whether to grant such extensions on the "relief from sanctions" basis as set out in CPR 3.9 and the leading case of Denton v White [2014] EWHC 906 (outlined here).

Taking the relevant factors in turn, the court held:

1. The defendant's failure to file an acknowledgement of service and apply to challenge jurisdiction in time was a serious and substantial breach. The defendant made the application over a year after the relevant time limits had expired.
2. There was no good reason for the breach. While the law was in a state of development, the Master considered it to be clear that the defendant had needed to file an acknowledgment of service and then challenge jurisdiction. Even if there was a real reason not to do so within the applicable period, the Master had specifically drawn the defendant's attention to this issue on three prior occasions, but the defendant had failed to take any steps.
3. The defendant had not discharged the heavy burden of showing that it was just in all the circumstances to grant relief from sanctions. It was significant that the defendant had failed to take up the court's earlier invitations to correct the situation, and had also failed to comply with a court order setting a time limit for the defendant to make an application of the nature it was now seeking to make.

Accordingly, the court refused to grant the defendant relief from sanctions. Accordingly, the defendant was unable to challenge the court's jurisdiction, and so the claim will proceed.

Note: The Court of Appeal has allowed the defendant's appeal and has dismissed the claimants' cross-appeal. See our blog post here.