Court of Appeal confirms defendants’ obligations following late service of claim form

In Bellway Homes Ltd v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347, the Court of Appeal clarified the obligations of a defendant where a claim form is not served within the time required by the Civil Procedure Rules (CPR) and no extension of time has been granted. The Court held that in such circumstances, a defendant is not subject to the court’s jurisdiction and is therefore under no obligation to file an acknowledgment of service and/or make an application to challenge jurisdiction under CPR 11.

This decision, together with other recent authority, confirms that where there is no valid service of a claim form (either because service was late or because an invalid method was used), the claim cannot be pursued unless the defendant accepts the court's jurisdiction.

Background

Following a serious fire in a block of flats, occupiers of the flats brought claims for personal injury, physical damage and economic loss against both the developer (“Bellway”) and the architect of the building.

The claimants’ claim form was issued on 6 June 2022 and the deadline for service of the claim form and particulars of claim was extended to 4pm on 21 April 2023, as recorded in a court order. Shortly before 4pm on 21 April, the claimants’ solicitors attempted to serve the claim form by fax to an unrecognised fax number. The attempts failed and the claim form was placed in a designated area of the claimants’ solicitors’ reception for collection by the DX courier, which typically occurred after office hours.

The defendants indicated they would apply to strike out the claim. Anticipating a dispute about valid service (and therefore whether the court had jurisdiction), on 28 April 2023, the claimants applied for a declaration that the claim form had been served in time or alternatively, relief from sanctions and a retrospective extension of time for service. They also argued that even if the claim form had been served late, because Bellway had failed to take steps in response to the claim, the proceedings should be permitted to continue.

High Court decision

The High Court held that the claim form had not been validly served by fax and had not been served in time by DX, and therefore there was no valid service. The Court also refused the claimants’ application for relief from sanctions.

However, the Court held that service of a claim form out of time but using a valid method did not cause a claim to be automatically struck out, rather it would continue in existence. In order to bring the claim to an end, the court must make an order declining or refusing to exercise jurisdiction, and to do this, the defendants must have filed an acknowledgment of service and made an application to challenge jurisdiction under CPR 11. Bellway therefore applied for a retrospective extension of time to file an acknowledgment and make the necessary application under CPR 11. The Court refused the extension and Bellway appealed.

The claimants cross-appealed against the decision that the claim form had not been served in time. The claimants argued that as the claimants’ solicitors left the claim form out for collection by a DX courier before 4pm on 21 April 2023, this was sufficient to comply with CPR 7.5.

Court of Appeal decision

Cross-appeal

The cross-appeal was considered first, as if the Court of Appeal found in the claimants’ favour, it would not be necessary to consider Bellway’s appeal. However, after considering what constitutes valid service by DX, the Court rejected the cross-appeal. The Court of Appeal held that leaving a claim form at a reception desk for collection was not sufficient. Instead, to comply with CPR 7.5, an “act of transmission” which is positive and irrevocable is required, for example passing the document into the DX provider’s possession. It would be a “nonsense” to suggest that the document sitting in the claimant’s reception for up to 72 hours – as 21 April 2023 was a Friday – was validly served by 4pm that day.

Bellway’s appeal

The Court of Appeal summarised that the questions for determination were: (i) whether a defendant is required, where there has been defective service, to take positive steps (file an acknowledgment of service and/or an application under CPR 11); and (ii) if they fail to do so, whether they are deemed to have accepted the court’s jurisdiction.

The Court considered the authorities dealing with the rights and obligations of parties in circumstances where the claimant had failed to serve a claim form properly and/or in time. It summarised the applicable principles, including that the CPR operates on the basis that a defendant's obligations to respond to a claim are only triggered by the valid service of a claim form. If a claim form has not been validly served and an extension is refused then, unless the defendant accepts the court's jurisdiction, the proceedings cannot be pursued against that defendant. This principle was recently confirmed in Robertson v Google LLC [2025] EWCA Civ 1262. The Court rejected the claimants’ attempt to distinguish Robertson on the basis that it concerned a failure to serve a claim form using the right method rather than a failure to serve the claim form on time. The Court held that this argument was based on a misinterpretation of the CPR, as a matter of principle there should be no distinction between the two situations, and the reasoning in Robertson did not distinguish between ‘wrong method’ and late service.

The Court also observed that the principles derived from the authorities were supported by “common sense”. In the Court’s view, it would be absurd to suggest that where the claimant is in default by failing to serve the claim form in time, they can obtain a “get out of jail free card” by suggesting the proceedings can continue as if the invalid service had never happened because the defendant failed to acknowledge the invalid service and/or apply under CPR 11.

The Court of Appeal allowed the appeal and set aside both orders of the High Court.

Key takeaways

The Court of Appeal’s decision makes clear that where a defendant receives a claim form that has not been validly served, they are not required to respond to it. However, defendants should give thought to whether there is a benefit in making an application to challenge jurisdiction to address the issue upfront. Otherwise, if they ignore the claim form, it is possible a claimant may apply for judgment in default which a defendant would then have to take steps to overturn.

With thanks to Megan Lyttelton for her assistance in preparing this post.