The Occupiers of Samuel Garside House v Bellway Homes Limited & Anor

There are before me two applications made by the Claimants:

The Claim arises from the event of a serious fire (“the Fire”) at a block of flats (“the Building”), originally constructed in 2013, known as Samuel Garside House, 2 De Pass Gardens, Barking, Essex IG11 0FQ on 9 June 2019. The Claimants are occupiers or former occupiers of various of the flats in the Building. The First Defendant is the developer and constructor of the Building. The corporate architect of the Building was a company with the name Sheppard Robson Limited (“SRL”) and which is an associated entity of another company Sheppard Robson Architects Limited (“SRAL”). The Claimants seek damages against the Defendants at common-law and under the Defective Premises Act 1972 (“the 1972 Act”) for alleged negligence and breach of statutory duties. Those damages are both for physical damage and economic loss, and for personal injuries. All but one of the original Claimants is an adult, but three of the five Additional Claimants are, or are said to be, minors.

The Claim Form was issued on 6 June 2022 and against the First Defendant and “Sheppard Robson Architects LLP”. Various extensions of time for service of the Claim Form were agreed but steps for service were only taken in April 2023. The Defendants assert that those steps were insufficient to comply with the relevant Civil Procedure Rules (“CPR”). The Claimants contend that they were but also that there was a further agreed extension of time for service to June 2023; and so that they should be granted a Declaration that there has been good service; and, if they fail on both contentions in relation to a relevant Defendant, that they should be granted some relief from resultant sanctions.

The Claimants further contend that the naming of “Sheppard Robson Architects LLP” as the Second Defendant was a misnomer, or a mistake, for “Sheppard Robson Limited, and which should be corrected by an amendment of the name to “Sheppard Robson Limited”. SRAL and SRL contend that it is SRAL which has been sued and to substitute SRL at this point would be impermissible for limitation reasons.

There is a further difficulty, if the Claimants fail at least in relation to the April Application, as to what should be the consequence, and, in particular, in the light of the very recent Court of Appeal decision in R (on the application of Rezq Allah Koro) v The County Court at Central London [2024] EWCA Civ 94 (“Koro”). This raises the question of whether the Defendants can actually complain about improper service on the facts before me.

The addition of the Additional Claimants is not opposed as such but is dependent upon what else occurs.

The Applications exist within a particular context of the law relating to limitation.

Section 11 of the Limitation Act 1980 (“the 1980 Act”) provides for a time-limit for the bringing of any claim for negligence or breach of duty where the claim includes damages in respect of personal injury to have a time-limit of 3 years from the acquiring of relevant knowledge. This provision applies even if other non-personal injury damages are claimed. However, it is subject to a power for the Court to disapply the time-limit where such is just and equitable under section 33 of the 1980 Act. That power is often exercised especially where there will be no substantive prejudice to a defendant due to a delay beyond the expiry of the three-year limitation period.

Section 135 of the Building Safety Act 2022 has inserted a new section 4B into the 1980 Act, and provides as follows:

In principle, it was common-ground before me that the effect of this new section 4B of the 1980 Act was that the limitation period for bringing claims under section 1 of the 1972 Act has not yet expired; and that this would apply to resultant claims for physical damage and economic loss.

However, the position may be different in relation to claims brought in common-law negligence as section 4B only applies to section 1 of the 1972 Act claims. I was not specifically addressed on when those claims might expire or have expired except that it was common-ground (at least to some extent) that a claim at common-law which included a claim for personal injuries would initially attract section 11 of the 1980 Act so that its limitation period would be three years (from knowledge of injury), in this case expiring shortly after the issue of the Claim Form, albeit subject to potential extension under section 33 of the 1980 Act.

There also seemed to be some mutual agreement that claims for personal injuries were simply governed by section 11 (and section 33) of the 1980 Act and therefore did not fall within and were not assisted by the new section 4B of the 1980 Act. That may be correct either generally or at least if such claims cannot be made the subject of claims under section 1 of the 1972 Act (although even then there would be a tension between the two sections, as section 11 of the 1980 Act applies to any claim which includes a claim for damages for personal injuries). I am not at all sure that either proposition is correct not having been addressed in any detail on them or the construction of new section 4B.

It was common-ground that the claims of the existing minor claimant and of the Additional Claimants (insofar as they are children as they assert), being all claims brought by minors, have the benefit of section 28 of the 1980 Act which effectively postpones the starting date from which limitation is to run for their claims (assuming that they were alive when the relevant right of action accrued and they are not claiming under some other person to whom the right of action had previously accrued when that other person was an adult) to the dates when they respectively attain 18.

As I have said, I was only addressed on those statutory provisions in outline as it was common-ground that their consequences include that:

I am not entirely sure that the above analysis is necessarily correct, at least in relation to the 1972 Act claims and claims for personal injuries, and I should not be taken as having affirmed it to be correct by this judgment; but it is at least arguable, and that, it seems to me, is sufficient to trigger various of the relevant rules (in particular section 35 of the 1980 Act as carried into effect by CPR17.4 and CPR19.6) to which I will come in this judgment.

I add that there would seem, at first sight, to be a substantial argument that, even if section 11 applies, a section 33 disapplication would be granted in relation to any new Claim Form. However, no submission was made to me that I could take that as being self-evident and so I have proceeded on the basis that such a section 33 case would only be arguable rather than certain.

I further must, and do, proceed on the basis that even if the Defendants’ assertions of these various limitation points were to turn out eventually to be bad in law (or overridden by a section 33 disapplication), the Defendants are entitled to require the relevant rules, those within the 1980 Act and the CPR, to be complied with. If the procedural law is that the result on the facts which I come to find is that this Claim Form must be struck-out as against one or more of the Defendants, then that is what I must do even if it may well turn out that the only real consequence is that the Defendants obtain costs orders against the Claimants.

The Claimant’s solicitors, Edwards Duthie Shamash (“EDS”) sent a Pre-Action Protocol Letter of Claim to the First Defendant’s solicitors Gateley Legal LLP (“GL”) at their Leeds office (“Leeds”) dated 18 December 2020. GL replied by letter of 22 January 2021 from Leeds giving an email address of Andrew.johnson@gateleylegal.com (“the Johnson Email Address”) and containing a Document Exchange address (“the Leeds DX Address”) but no fax number.

EDS also sent a Pre-Action Protocol initial Letter of Claim addressed to “Sheppard Robson Architects LLP” stating that Sheppard Robson Architects LLP were the architects of the Building and intimating a claim against them dated 18 December 2020. On 14 January 2021 Mayer Brown International LLP solicitors (“MB”) replied to say that they were instructed by “Sheppard Robson Limited (“Sheppard Robson”)” and referred “to your letter of claim to Sheppard Robson dated 18 December 2020…” and then sent a more (and highly) detailed letter on 20 January 2021 which started “We refer to your letter of claim to Sheppard Robson Limited (“Sheppard Robson”) dated 18 December 2020…”. That and subsequent letters contained both a fax number (“the MB Fax Number”) and a DX address (“the MB DX Address”) for MB.

On 9 May 2022, EDS sent by email to GL at the Johnson Email Address a letter (which I infer must have been addressed to the Leeds Address, as this was EDS’s ordinary practice, and although I do not have a copy of it in evidence, I regard that as proved by the Claimants as being more likely than not on the balance of probabilities having considered all the evidence and the inherent probabilities) which asked for them for confirmation as to whether they would accept service. GL replied by an email of 9 May 2022 which did not bear any fax number, stating that “I can confirm that we are authorised to accept service of proceedings.”

On 11 May 2022 EDS sent a letter to MB headed “Your Client: Sheppard Robson Architects LLP” and asking “whether you have instructions to accept service of proceedings on behalf of your client.” MB responded by letter of 12 May 2022 to complain that the Protocol process was not being followed including by reference to “our Letter of Response on 20 January 2021”, but also saying “we can confirm that we are instructed to accept service of proceedings on behalf of our client in relation to the Development”, although they did not there identify what entity was “our client”.

On 19 May 2022 EDS sent a letter to MB again headed “Your Client: Sheppard Robson Architects LLP” and proposing a limitation standstill agreement and attached a draft which referred to a party being “Sheppard Robson Architects Limited”. On 26 May 2022 MB responded with a draft which altered that name to “Sheppard Robson Limited”. The standstill agreement was never finally agreed.

On 6 June 2022 EDS issued the Claim Form with the Second Defendant being “Sheppard Robson Architects LLP”. The Claim Form stated:

On 7 June 2022 EDS notified MB by a letter headed “Your Client: Sheppard Robson Architects LLP” that the Claim Form had been issued.

On 22 September 2022 EDS wrote to MB by a letter headed “Your Client: Sheppard Robson Architects LLP”, asking for them to agree a Consent Order for a stay of the Claim until 6 January 2023 and to extend time for service of the Claim Form and Particulars of Claim to 24 February 2023. On the same day they sent a similar letter to GL.

GL replied by letter of 30 September 2022 giving an email address of rakshinda.nazir@gateleylegal.com (“the Nazir Email Address”) bearing a physical address of Gateley’s Belfast office (“the Belfast Address”) and with no Document Exchange address and no fax number. The relevant fee earners were then and remained located in Leeds and no explanation has been given for the sending of this or other letters bearing the Belfast Address. EDS responded by letter sent by DX to the Leeds Address and email to the Johnson Email Address with a revised proposed consent order proposing service of the Claim Form and Particulars of Claim by 4pm on 3 March 2023.

On 22 September 2022 EDS also wrote to MB by a letter headed “Your Client: Sheppard Robson Architects LLP”, asking for them to agree extended deadlines leading to a Protocol meeting of the parties by 3 April 2023. They referred to the existing Consent Order having extended time for service to 4pm on 21 April 2023.

MB responded by letter of 30 September 2022 which stated amongst other things “You have issued a claim form against the wrong entity. As we confirmed in our Letter of Response and when we subsequently provided our comments on your proposed standstill agreement Sheppard Robson Limited (not Sheppard Robson Architects LLP) was instructed by Bellway Homes on the Development. Therefore any claim in tort is now time barred under the Limitation Act 1980.” They then proposed that there be a timetable leading to a Protocol discussion meeting.

On 3 October 2022 GL sent a signed (by both GL and MB) copy of the proposed consent order by email from the Nazir Email Address and asked that all further correspondence to GL should be sent to the Nazir Email Address copying in Andrew Johnson. The email bore a Leeds telephone number.

On 1 November 2022 the Court made, and on 2 November 2022 sealed, the proposed consent order (“the November Order”), which was headed with the name of the Second Defendant as “Sheppard Robson Architects LLP” and which provided “The deadline for the Claimants to file and serve the Claim Form and Particulars of Claim shall be extended to 4pm on 21 April 2023.” and was signed by MB for “Sheppard Robson”.

On 2 December 2022 EDS wrote to both GL (by DX to the Leeds DX Address and email to the Johnson Email Address) and MB (by email) asking for certain extensions and stating that given the November Order extended time for service of the Claim Form and the Particulars of Claim to 21 April 2023, those extensions would not prejudice the timetable.

On 8 December 2022, MB sent a letter to EDS, which letter bore the London Fax Number. It stated that the current timetable provided for the Claim Form and Particulars of Claim to be served by 21 April 2023.

It said in its paragraph 2(d) that given that the Claimants were unlikely to send their Letter of Claim until 16 February 2023 “the dates of the subsequent steps in the timetable will most likely need to be adjusted as follows… Claim Form and Particulars of Claim to be filed and served by 8 June 2023…”.

It said in its paragraph 4 that “Notwithstanding the above, we propose that the dates set out at paragraph 2(d) are considered further in due course i.e. after your clients have procured the necessary evidence from their fire-engineering expert and if appropriate sent a revised Protocol Letter of Claim. We think that is a sensible approach because:

GL then sent an emailed letter of 16 December 2022 from the Johnson Email Address again bearing the Belfast Address and no DX address and no fax number. They said “4. If you are not in a position to serve the Letter of Claim by 16/12/2022, it seems logical to delay the subsequent steps in the timetable to the following dates… Claimant’s Claim Form and Particulars of Claim to be filed/served by 8/6/2023. 5. Mindful that you are yet to receive the expert’s evidence (and to allow for any further delays) it is suggested that the dates in paragraph 4 are further reviewed on receipt of the same.”

EDS responded to GL by letter of 19 December 2022 sent by DX to the Leeds DX Address and email to the Johnson Email Address saying “We agree with your paragraph 5 and with that in mind, we propose to update you once the expert evidence is received so that we can confirm a timetable. We would hope that that timetable coincides with the same set for [MB]. We attach a copy of correspondence with [MB] dated 2 and 19 December 2022 and we will endeavour to update you as soon as we have further insight from the expert in order to discuss the timetable further.”

EDS responded to MB by letter also of 19 December 2022 saying “We consider your approach in paragraph 4 to be most sensible. We are content to notify you once we have received the expert evidence and have a clearer date for the necessary next steps i.e. for the revised Letter of Claim in the first instance. The parties can then liaise further on the timetable.”

By letter of 18 January 2023 sent by EDS to GL by DX to the Leeds DX Address and email to the Johnson Email Address, and also sent by email to MB, EDS referred to further delay with the fire expert and asked “Can you please confirm that you are content for us to provide you with an update closer to the 4 week mark to ensure the report is due on time, and then we can agree revised dates, hopefully within the stay, and if not review the stay. We will endeavour to keep you updated.”

MB responded by email of 19 January 2023 (copied to GL) to say “… we confirm that our client is content with the approach which you have proposed therein. For the reasons which were set out in [MB’s letter of 8 December 2022], if and to the extent that your clients elect to proceed with this claim… the current timetable (and stay in the proceedings) will certainly need to be adjusted.”

Nazir of GL responded by email (which bore a Leeds telephone number), copied to MB, of 20 January 2023 to say “We confirm… that if on receipt of the expert evidence your client chooses to proceed with the claim, our client agrees your approach.”

On 7 February 2023 GL wrote to MB to request a copy of “the architect’s retainer” but by letter of 9 February 2023 MB refused the request, seeking various explanations first.

By letter of 15 February 2023 sent by EDS to GL by DX to the Leeds Address and email to the Johnson Email Address, and also sent by email to MB, EDS referred to further delay with the fire expert and said “… we would prefer to provide a timetable that can be made and once we have a firm date for the report. We therefore propose to update you once the expert’s report has been received, and then set a timetable to be agreed by all parties in respect of the revised letter of claim… We invite you to kindly agree to this, with the view that you should be hearing from us by the end of the month with an update and thereafter we can review the timetable and, if necessary, execute a further Consent Order.”

MB responded by email of 15 February 2023 to say that “we have no objection to your proposal.”

On 21 April 2023 at 2.17pm EDS emailed GL to the Nazir Email Address stating “The deadline for service of the claim is today. Can you confirm whether you will agree to execute a consent order to postpone the deadline by three months… We are due the final expert’s report by the beginning of May…Forgive us for the time constraints but may we have your reply by 2.45pm after which time we will serve the claim and would be content to continue the discussions on the stay thereafter.” At 15.22pm EDS emailed a proposed consent order. At 3.53pm a Roger McCourt of GL, with an email which bore the Leeds Telephone Number, responded to refuse in circumstances “where you are proceeding to serve a claim form…” At 4.18pm EDS responded to say that their Salma Hussain had confirmed with a “Barbara” at GL their fax number but that “That fax number has not been recognised.” and said “given the issues with the fax at your end, can you confirm that our email timed at 15.44… can be accepted as service of the claim.”

On 21 April 2023, EDS sent or purported to send, by way of service, the Claim Form to GL by DX to the Leeds DX Address and by fax under cover of a letter of 21 April 2023 which also referred to Service by Fax (giving a Leeds Fax Number) and which stated that it was sent “(by way of copy only)” to the Johnson Email Address; and invited a stay. EDS contend that they sought to send the Claim Form to GL by fax at 4pm, but which failed, and by DX (and I deal with what actually happened further below).

Also on 21 April 2023, EDS sought to send the Claim Form by fax (and also by email) to MB. EDS contend that they then sought to send the Claim Form to MB by fax at 15.49pm, but which failed, and by DX (and I deal with what actually happened further below).

On 27 April 2023, GL replied by emailed letter which bore the Leeds Address and did not have any fax number to say that: (i) the Claim Form had not been served in accordance with the November Order and where there had been no previous indication of a preparedness to accept service by fax or electronic means (ii) there was also a serious failure to serve Particulars of Claim in time and (iii) they would be applying to strike-out the claim under CPR3.4(2)(c).

On 27 April 2023, MB sent EDS a letter referring to emails on 21 April 2023, and stating that they had not received any fax, and saying that the Claim Form (and Particulars of Claim) had not been served in time and any application for leave to serve them would be resisted and they would apply to strike out the Claim. They repeated that the Claimants had issued and attempted to serve the wrong entity.

On 28 April 2023, the Claimants applied for a declaration that the Claim Form had been served, alternatively for relief from sanctions for any failure to serve the Claim Form and Particulars of Claim in time and/or for an extension of time. The application was supported by a witness statement of Kavita Rana (“Rana”) of EDS of 28 April 2023 and which referred to the past events and which I have considered in its entirety but which in particular (i) stated there had been an agreement to extend time for service to 8 June 2023 (ii) referred to the history (iii) said that Salma Hussain of EDS had spoken to a “Barbara” at GL at 15.22 on 21 April 2023 and asked for confirmation of the Leeds Fax Number, which Barbara gave (iv) stated that EDS sought to fax the Claim Form to GL at around 3.45pm but received an error message and then tried and failed again (v) stated that Ms Hussain confirmed the fax number with Barbara at about 3.45pm (vi) stated that the fax did not deliver to GL (vii) said that attempts had been made to fax the Claim Form to MB on 21 April 2023 but had failed (vii) stated that relief from sanctions was sought in relation to all matters, should such be required, and including because EDS were seeking to comply with a Protocol process but the Defendants had refused to accept the agreed extension to 8 June 2023.

On 4 May 2023 EDS responded to GL to state (i) the effect of Jones v Chichester 2017 EWHC 2270 “Jones”) was that the Claimant merely needed to have carried out a relevant service step in time and (ii) this had been done in any event by the Claim Form having been placed in the DX on 21 April 2023 and (iii) in any event there had been an agreed extension to 8 June 2023 and (iv) they sought a further extension for the Particulars of Claim to 10 May 2023. GL asserted by letter of 4 May 2023 from Leeds that the Claim Form had not been effectively served.

On 10 May 2023, EDS sent the Particulars of Claim and the Claim Form to both GL and MB by DX. The Particulars of Claim referred to an intention to amend the name of the Second Defendant to “Sheppard Robson Limited.”.

I note that no-one has filed any Acknowledgment of Service or made any application under CPR Part 11 for the Court to declare that it lacks jurisdiction or should not exercise any jurisdiction that it does have.

By letter of 17 May 2023 sent from Leeds, GL asserted that the Claim Form had not been served and that there was no obligation to file an Acknowledgment of Service “unless the Court grants the Claimants permission to serve the Claim Form and Particulars of Claim.” and referred to North Midland v Geo Networks [2015] EWHC 2384 (“North Midland”).

The April Application was listed for hearing before me on 8 November 2023.

The August Application was issued on 23 August 2023 to change the name of the Second Defendant to Sheppard Robson Limited and to add the various proposed minor Claimants. It was listed for hearing before me on 8 November 2023.

On 27 September 2023, MB wrote to EDS to refuse permission to amend unless all claims in negligence for personal injury were deleted, on the basis that SRL had not yet been sued and such claims against SRL were time-barred (albeit that this would be absent a section 33 of the 1980 Act extension). On 3 October 2023 EDS wrote to MB (albeit with a title stating “Your Client” as being SRAL) to say that there had been a genuine mistake as to the name of the Second Defendant and it was clear as to which entity was meant.

On 24 October 2023 Nazir for GL provided a witness statement which I have considered in its entirety and which in particular stated that as at 28 April 2023 EDS had not attempted to serve on the First Defendant and that GL was not authorised to accept service on behalf of the First Defendant and had not suggested that it was. In the light of the GL email of 9 May 2022, those contentions have not been pursued.

Also on 24 October 2023, the Claimants adduced a second witness statement from Rana. This (i) referred to the 9 May 2022 GL email and its stating that GL was authorised to accept service (ii) stated that the Claim Form letters were sent (but without stating when) by DX to GL and had not been returned (iii) stated that the Claim Form and Particulars of Claim were also served on GL by DX and post on 12 May 2023.

On 30 October 2023, MB adduced a witness statement of Robert Hobson of MB, stating that he was acting on behalf of both “the Second Defendant and Sheppard Robson Limited”. The witness statement was drafted on the basis that it was SRAL which was “the Second Defendant”. I have considered it in its entirety but note in particular that it stated that: (i) the Claim Form had been received on 24 April 2023 and it was not known when it had been left at the DX (ii) MB had no records of receiving any fax from EDS on 21 April 2023 or on any other date, and had no record of any conversations with EDS about fax (iii) there was no agreement made to extend time for service to 8 June 2023 (iv) the Particulars of Claim were served late on any basis (v) the Court lacked jurisdiction as a result of failures to serve the Claim Form and Particulars of Claim in time (vi) EDS had deliberately named SRAL as the Second Defendant when they had been told it should have been SRL, and in the circumstances it was not clear that they had intended to sue SRL, and they had unreasonably delayed and it was too late for them to correct their errors.

I heard oral submissions (supplementing written skeleton arguments) in relation to the two applications on 8 November 2023 but time proved insufficient and I adjourned the matter to 8 February 2024. The parties then, shortly before that hearing, asked me to vacate the hearing and to deal with the matter purely on the basis of their written submissions. I agreed to that course.

In the meantime, the Claimant served the third and fourth witness statements of Rana of 27 November 2023 and 17 January 2024; and the Second Defendant a second witness statement of Hobson of 21 December 2023. I have considered them and the other witness statements in their entirety, but note in particular that:

However, the Court of Appeal then decided the case of Koro. It seemed to me that that raised further questions as to what was the effect of there being no Acknowledgments of Service or CPR Part 11 applications on the part of any of the Defendants, and I invited further written submissions. These were eventually provided with the last being submitted to the Court’s electronic CE-File on 27 March 2024 but only being processed on 22 April 2024.

I have considered all the parties’ submissions and evidence in coming to this judgment.

I have considered in particular the following elements of the CPR. The overriding objective is contained in CPR1.1 (although it tends to take a secondary place to specific rules):

CPR2.11 provides that parties can usually vary CPR time-limits by written agreement:

CPR3.9 deals with relief from sanctions and provides:

CPR Part 6 deals with service generally. CPR6.7 is the rule which renders service on a party’s solicitor mandatory when a solicitor acting for that party has notified the claimant in writing of a business address in England & Wales or Scotland or Northern Ireland:

CPR Practice Direction 6A supplements CPR6 in relation to methods of service regarding document exchange, post, fax and e-mail as follows (the provisions have changed slightly since the purported service in this case but not so as to be material to what I have to decide):

It is noticeable (and which was affirmed in Barton v Wright Hassall [2018] UKSC 12) that: where a fax number is given by a solicitor, it is deemed that service can take place by fax without more; while, where an email address is given by a solicitor, the solicitor has to state that it can be used for service (and there should be made an advance enquiry regarding document sizes) and that in the absence of such a statement email cannot be used. I believe that this differentiation is presently being considered and may be consulted on by the Civil Procedure Rules Committee but I am concerned with the law in its present form.

CPR7.5 deals with time for taking a service step:

I note that CPR7.5 does not require the taking of a relevant service step to have been successful. CPR6.14 deems service within the UK to have occurred upon the second day after the taking of the relevant service step; but for the purposes of CPR7.5 only the service step needs to have been taken.

CPR7.6 deals with the seeking of extensions for service of the claim form:

CPR7.4 deals with time for service of Particulars of Claim:

CPR10 contains provisions for filing by a defendant with an acknowledgment of services following service of a claim form and particulars of claim, and refers to the ability of a claimant to obtain default judgment if that does not occur:

CPR11 deals with disputing the court’s jurisdiction and provides as follows:

CPR Part 17 deals with amendments. CPR17.1 provides:

There is no issue as to the Claimants having complied with CPR19.4 in relation to their amendment application, but the Defendants rely on CPR17.4 which reads:

The Defendants further rely upon CPR19.6 which reads:

Those last rules reflect various provisions of the Limitation Act 1980, section 33(1) of which provides that the court has a discretion to disapply sections 11 and 12:

Section 35 of the Limitation Act 1980 provides that:

The Claimants seek a determination that the Claim Form was validly served i.e. in accordance with the Civil Procedure Rules. The Defendants say that such has not occurred; and, further, SRAL and SRL contend that SRL is not and should not be treated as being a party and that there has been no service ever on SRL.

It is now common-ground, I think although in any event I consider that it is the case, that both GL (by their email of 9 May 2022) and MB (by their letter of 12 May 2022) provided solicitor confirmations for the purposes of CPR6.7 that they were authorised to accept service. Those confirmations rendered it mandatory for service to take place on the solicitor and not the client (see e.g. Nanglegan v Royal Free [2001] EWCA Civ 127).

I note that CPR6.7 requires the solicitor to confirm that they will accept service “at a business address within [the jurisdiction/Scotland/Northern Ireland]”. The GL email did not give any business address.

The general law as to construction of documents is not in dispute (and is applicable to these circumstances – see the final paragraph of the White Book notes at 6.7.1 and such cases as Actavis v Ely Lilly [2013] EWCA 517 and Higgins v ERC [2017] EWHC 2190). As stated in such cases as Arnold v Britton 2015 UKSC 36 and Lukoil Asia Pacific Pte Ltd v. Ocean Tankers (Pte) Ltd (The "Ocean Neptune") [2018] EWHC 163 (Comm) the Court asks itself how a reasonable reader would interpret the document and the words used in the light of the factual matrix known to the parties and the apparent commercial purpose, giving proper weight to the words themselves and ignoring the parties’ subjective understandings, and weighing up the various possible interpretations together (as opposed to in some sort of order so as to leave a default meaning if others are not accepted) in order to come to the answer.

Here the wording of the 9 May 2022 email on its own is unclear. However, the construction process has to take place in the context of the factual matrix. Here, the previous letter from GL of 22 January 2021 gave the Leeds Address, and also gave the Leeds Email Address which was being used by both EDS and GL for the purposes of these communications, and I infer (see above) that the letter of 9 May 2022 from EDS to GL seeking confirmation that GL would accept service was addressed to the Leeds Address (although sent by email). That factual matrix seems to me to favour the correct interpretation of the 9 May 2022 email as being that the Leeds Address, being a business address of GL, was being said to be where service should take place. Further, the commercial purpose of the 9 May 2022 email was to provide for service in accordance with CPR6.7, and that also favours it as being interpreted to be stating that the Leeds Address (being the only one so far identified for GL) was the relevant business address for service, as otherwise the 9 May 2022 email would not have the obviously intended effect. Having considered the words, the factual matrix and the commercial purpose, and all the possible constructions, I conclude that the reasonable reader would construe the 9 May 2022 email as stating that the Leeds Address was the business address for service.

I further consider that, even if the correct interpretation on construction principles of the 9 May 2022 email was not that the Leeds Address was being stated as the business address for service, such a statement would be implied to be within it. Such a statement is clear, reasonable, and also both obvious (as I consider that the reasonable bystander would consider that it was obvious that both EDS and GL would have answered the question of whether GL was saying that service should at the Leeds Address within a resounding “Yes”) and necessary to give business efficacy to the 9 May 2022 email (which would otherwise not have its intended effect of satisfying CPR6.7), and there was no other realistic possible address at that point in time. I consider that the principles for such an implication (and see e.g. BNY v Cine-UK [2022] EWCA 1021 @ 55, 135-139) are clearly satisfied.

A further question arises as who was meant to be “our client” by MB’s statement in the letter of 11 May 2022 that “we can confirm that we are instructed to accept service of proceedings on behalf of our client in relation to the Development”.

Here the wording “our client” is potentially ambiguous as the MB letter of 12 May 2022 does not refer to any entity by name. I have borne in mind that the MB letter was sent in reply to that of GL of 11 May 2022 which was headed “YOUR CLIENT: SHEPPARD ROBSON ARCHITECTS LLP” and asked whether MB had “instructions to accept service of proceedings on behalf of your client.” However, I regard the factual matrix as extending to the entire chain of correspondence (and to which the MB letter of 12 May 2022 expressly referred) and where the original 18 December 2020 letter from GL was sent to SRAL but where MB had replied on 14 January 2021 to state that they were “instructed by Sheppard Robson Limited (“Sheppard Robson”)” and to “refer to your letter of claim to Sheppard Robson”; and where MB had then sent the highly detailed letter of 20 January 2021 saying again “We refer to your letter of claim to Sheppard Robson Limited (“Sheppard Robson)” and responding throughout with regard to “Sheppard Robson”.

In my judgment, a reasonable reader would interpret the MB letter of 12 May 2022 as referring to SRL as being “our client” and not SRAL. That is in particular, although I have considered all the circumstances, because: (1) MB had only ever identified SRL (and not SRAL) as their client (2) the letter of 12 May 2022 by referring to the previous correspondence made clear that it was dealing with refutation of a claim (and service of any claim form) against SRL being the entity specifically identified by MB in the previous correspondence. While the GL letter of 11 May 2022 identified SRAL as being MB’s client, I am here concerned with MB’s letter and that has to be seen in the overall context where MB clearly regarded themselves as acting on behalf of SRL and had not ever suggested that they acted on behalf of SRAL.

It is common-ground that the November Order extended the time for the taking of a service step under CPR7.5 to 4pm on 21 April 2023. That is essentially what was decided by Master McCloud in Jones. In any event, I regard that decision as being correct and applicable here, notwithstanding that the wording of the November Order was “time for service is extended until…” Applying the general principles of construction set out above, I regard that interpretation a being correct, in particular as:

However, I do add that the time for the taking of the prescribed step for service was expressly limited by the November Order to 4pm, and not midnight, on 21 April 2023. While CPR7.5 provides for a midnight deadline, I see no reason to ignore the particular time expressly stated in the November Order.

The questions then arise as to whether what happened on 21 April 2023 was sufficient to amount to the taking of a prescribed service step in accordance with the November Order in time in relation to each Defendant (and assuming at this point that the Second Defendant is in fact to be treated as being SRL).

As far as the First Defendant is concerned, service was purportedly effected by Fax and by DX.

I note that references have been made to service by email but that has not been pursued as a contention by the Claimants, and rightly in my view as:

As far as service by Fax is concerned, questions arise as to (i) whether and if so what Fax number could be used (ii) whether a relevant Fax was actually sent and (iii) if so whether a relevant Fax was actually received and, if not, why that was. I note that in relation to both the Defendants, the Claimants’ application of 28 October 2023 and the supporting evidence did not rely upon service by Fax. However, no objection has been taken to the Claimants seeking to rely on service by Fax and I would consider it to be contrary to the overriding objective for them to be prevented from seeking to do so as (i) no prejudice has been suggested (ii) such would not be fair if service had occurred within time by Fax and (iii) it could lead to the Court potentially reaching a conclusion which was not justified on the true facts by the CPR.

The first question is one of interpretation and evaluation of the correspondence. The email which contained the confirmation of authorisation to accept service from GL of 9 May 2022 did not contain any Fax number although it was sent bearing a Leeds telephone number from the Johnson Email Address (and to which EDS’ letter seeking to know whether GL were authorised to accept service had been sent). The previous letter from GL (and which bore the Johnson Email Address) was that of 22 January 2021 which bore the Leeds Address but no Fax number; and subsequent letters from GL bore the Belfast Address but no Fax number.

In those circumstances, I cannot see any written indication as to service by Fax on the part of GL sufficient to satisfy CPR PD 6A paragraph 4. That provision requires the indication to be “in writing” and permits it to be by a Fax number “set out on the writing paper of the solicitor”. However, there is simply nothing in writing at all which bears or refers to any Fax number.

Mr Sawtell for the Claimants sought to rely on the conversations with “Barbara” on 21 April 2023 in which GL’s Leeds Fax number was ascertained. Those conversations were not in writing and so cannot satisfy CPR PD 6A paragraph 4.

It might be arguable that, if a sufficiently clear express or implied statement was made that GL would accept service by fax, some estoppel might arise, although that is dubious where the CPR rule requires there to be a written indication. However, I do not see there as being sufficient in the witness evidence or the emails of 21 April 2023 or the evidence before me as a whole, and having considered inherent probabilities, to render it more likely than not (that is to say applying the balance of probabilities test where the burden of proof (but only to greater than 50.00…% likelihood) here is on the Claimants who would be seeking to assert the existence of the relevant facts) that “Barbara” or some other person at GL who might be said to have authority accepted, expressly or impliedly, that the Claim Form could be served by Fax (as opposed to merely supplying a Fax number by which communications could be made to GL). It seems to me that there would need to be something clear to that effect for an estoppel to be possible, as an oral statement that a particular number was GL’s fax number would go no further than that and would not in my view amount to a representation or give rise to a convention that service of a Claim Form could take place by a sending to such number, but I do not regard the evidence as being sufficient.

If I was wrong and that service by sending to the Leeds fax number was sufficient; it would seem sufficiently clear to me that attempts were made to send the Claim Form by fax before 4pm on 21 April 2023 were made, and that they did not succeed (the Claimant’s own evidence being that the sendings failed).

That gives rise to a factual question of whether (a) EDS’s fax machine failed to send, (b) EDS’s fax machine did send but the message was lost in transit between the EDS fax machine and the GL fax machine/system or (c) the message reached the GL fax machine/system but which could not process it. Again I have had to consider all the evidence on the balance of probabilities and ask myself simply whether it is more likely than not that what the Claimant requires to have taken place did do so (the burden of proof being on the Claimant but only to a standard of greater than 50.00…% likelihood).

Here I have the Claimants’ evidence of numerous failed attempts to send, so that there were actually received and processed, by Fax to both GL and MB during the afternoon of 21 April 2023 around 4pm. The only attempt to GL was at 4pm (that being what was said with specificity in Rana’s third witness statement although an earlier time may have been suggested in Rana’s first witness statement) and the error report stated that it was due to problems with the feed into the EDS fax machine and overloading of it. In all the circumstances and having considered all the evidence, and having considered inherent probabilities, I conclude that the Claimants have not discharged the burden of proof to show that it is more likely than not that the EDS fax machine sent out into the transmission network the Claim Form to GL. Rather, the evidence suggests that the feed problem resulted in there being nothing which can be described as a sufficient “sending” of the fax material. That renders it unnecessary for me to decide in relation to the First Defendant: (a) whether any “sending” took place “by 4pm” being the terms of the extension granted by the November Order or (b) whether mere “sending” is sufficient irrespective of the extent to which the electronic material passes through the transmission network (and which I consider below in relation to MB).

I therefore conclude that the Claim Form was not validly served on the First Defendant by Fax to GL.

The Claimants also contend that EDS took a relevant CPR7.5 service step in time by sending the Claim Form by DX. I note that CPR7.5 provides that the relevant service step is “Posting, leaving with, delivering to or collection by the relevant service provider.” Here there are two questions being (i) whether service by DX was permissible and (ii) whether the relevant service step took place in time.

With regard to the first question, the Claimants contend that they can rely on paragraph 2.1 of CPR PD 6A and that GL’s writing paper (by the 20 January 2021 letter) set out the Leeds DX Number and GL had not indicated that they were unwilling to accept service by DX. Mr Calland for the First Defendant responds to say that: the GL email of 9 May 2022 did not contain any DX number; and the subsequent GL letters (from 30 September 2022 onwards) were on the Belfast Address notepaper with no DX number and were inconsistent with any preparedness on the part of GL to accept service by DX.

It seems to me that if the matter had remained as it was at 9 May 2022, the answer would be simple. The GL 9 May 2022 email is simply a continuation of the previous correspondence sent by the same person (Andrew Johnson) with the same email address (the Leeds Email Address), that correspondence contains the Leeds DX Number on the GL solicitors writing paper, there is no requirement in the PD that the DX number be set out in the letter which contains the confirmation, and I have already held (see above) that the 9 May 2022 email is to be construed (by way of construction or implication) as providing for the Leeds Address to be the address for service and to which address belongs the Leeds DX Number. Thus the Leeds DX Number would satisfy Paragraph 2.1 of CPR PD 6A.

However, it does seem to me that the relevant solicitor can change what has been stated previously with regard to service. Were that not to be the case, a solicitor could not safely give an address for service under CPR6.7 for fear that they might change address or other communication details. Such a change should be capable, in my judgment, of being communicated simply by a clear communicated statement and where, ordinarily, a change in writing paper would be sufficient to imply such a communication (although, obviously, it would be best to have an express statement).

However, the difficulty here is that the use of the Belfast Address notepaper was an error as the relevant fee earners were not operating from the GL Belfast office which had no connection with the dispute, or its handling, apart from the use of its notepaper (that being for reasons and in circumstances which Mr Calland, for the First Defendant, was unable to explain). Further, while EDS communicated by email, it did so by sending letters addressed to (and which were also sent by post to) the Leeds Address without any demur or complaint from GL.

In all those circumstances, I conclude that the use by GL of the Belfast Address notepaper was such a clear and obvious error that it should be ignored for all (including CPR) purposes; in accordance with the general principle that obvious errors are to be disregarded – see e.g. Mannai v Eagle Star [1997] AC 749 (and while that decision is in the context of interpretation of notices, I do not see why its principles should not be applied to interpretation of correspondence in this context).

I therefore conclude that sending to the Leeds DX Address was an appropriate means of service on the First Defendant.

However, the second question is whether such a sending occurred within time; being by 4pm on 21 April 2023. Here the evidence from Rana is that the Claim Form was left in the EDS reception for collection by the DX courier which took place on the usual basis after office hours i.e. after 4pm. That evidence has not been challenged and I accept it and regard those matters as having been proved on the balance of probabilities. However, I note that Rana does not identify precisely when the documents were printed out and left for collection (although it would have been after 3.40pm).

Nevertheless, even if the printing out etc. took place before 4pm, I do not regard that as sufficient for the relevant service step to have been taken in time under CPR7.5. The leaving of the material in the EDS reception cannot, in my judgment, amount to a “delivering to… the relevant service provider” and the “collection by the relevant service provider” only took place after the 4pm time limit contained within the November Order. While the position might be different (although I have reached no conclusion on the point) if the material had been placed in a box owned by the DX provider (and possibly to which only the DX provider had a key), Rana only states that the material was left in reception and that the DX courier had a key to the office enabling access after office hours.

I therefore do not regard there as having been valid service on the First Defendant by DX (or fax or otherwise) in compliance with CPR7.5 within the extended time allowed for by the November Order.

The Claimants again contend that service on the Second Defendant (assuming that it is SRL) was effected by Fax and DX to MB. They do not assert that it was effected by email, rightly in my view for the same reasons as to why service was not effected by email to GL in relation to the First Defendant.

Here the evidence of Rana, which I accept as to this and other matters (and which has not been challenged as such with no application having been made for cross-examination), is that EDS sought to serve MB by sending a Fax to the MB Fax Number at 15.49pm on 21 April 2023 which generated a ##280 error message and a Fax to the MB Fax Number after 4pm on 21 April 2023 which failed with an error message relating to document feeding problems. The evidence of Hobson, which is consistent with that of Rana, and which I also accept as to this and other matters (and which has not been challenged as such with no application having been made for cross-examination), is that MB did not receive any fax from EDS on 21 April 2023. I regard those matters as proved on the balance of probabilities.

I therefore have to consider in relation to each of those two attempts at what point in the transmission sequence the failure occurred; and have considered all the evidence and the inherent probabilities.

In relation to the second attempt (i.e. that after 4pm), I consider that the Claimants have not proved on the balance of probabilities that the Fax was sent from the EDS Fax machine at all into the transmission network. That conclusion is consistent with the error message received which appears at first sight to relate to a problem which the EDS Fax machine had with the documents which were being sought to be sent. It is also consistent (although there are other explanations for the following) with the fact that MB did not receive any fax from EDS. I do not consider that the Claimant has proved there occurred what would be sufficient to amount to the taking of a CPR7.5 service step at all. However, in any event, whatever did happen only occurred after the 4pm deadline in the November Order and therefore did not take place in time.

The first attempt (i.e. that at 15.49pm) was within the time limited by the November Order. Here the evidence as to what occurred; being, in particular (although I have considered all of the evidence). the ##280 error message which I am satisfied on the evidence of both Rana and Hobson only meant that a problem had occurred somewhere in the process (which could be at the EDS Fax machine or at the MB fax machine or anywhere in between), the fact that where there were document feeding problems a different error message would be generated, the fact that the EDS Fax machine was successfully sending faxes to other destinations, the fact that the fax was not received by MB, and the fact that no problems were reported with the MB fax machine; is finely balanced. However, the burden of proof is on the Claimants, and I do not consider that the Claimants have discharged it on the balance of probabilities. All I can really tell is that the attempted transmission failed and I do not have sufficient to conclude that it is more likely than not that the transmission failed at some electronic point after the EDS machine had “sent” it. That it does not seem to me can have been sufficient to amount to a “Sending the… other electronic transmission” within the meaning of CPR7.5.

If I had concluded that the transmission had failed at some later electronic point, I would then have had to ask myself whether what had occurred was sufficient to comply with CPR7.5 where the wording of “Sending” might be capable of being contrasted with “Receiving” and suggest that all that was necessary was for the Fax to leave the EDS Fax machine electronically and enter into the transmission network even if it did not reach its destination (rather than its being rejected by the MB Fax machine). That would involve me having to construe CPR7.5 in accordance with the usual construction principles, such to include what appeared to be the underlying statutory purpose.

I note that the current wording of the CPR (and which was in place as at 21 April 2023) is that the CPR7.5 service step for “Electronic method” is “Sending the e-mail or other electronic transmission.” Before 1 October 2022 (and the coming into force of the Civil Procedure (Amendment No. 2) Rules 2022 SI 2022/783, the rule read “Fax… Completing the transmission of the fax. Other electronic method… Sending the email or other electronic transmission.” The rule amendment involved combining all forms of electronic transmission into one, essentially as part of the CPRC’s process of simplification of the CPR. The previous (pre-1 October 2022) wording might be said to suggest a need at least for the transmission to reach the receiving (MB) fax machine although it can be read to merely require the electronic data to be transmitted out of the EDS Fax machine. Moreover, there are dangers in using a previous version of the rule to seek to construe the amended version as the actual intention of the CPRC in amending the rule is inadmissible when construing it. I therefore do not find the fact of the rule change or the previous version of the rule as being of particular assistance.

In my view the key word is “Sending” and this part of the rule has to be seen in the context of other parts of CPR7.5(1) which are framed in terms of considering what the serving claimant has to have done themselves rather than what others (e.g. the post office or a relevant service provider or the internet) have done (successfully or otherwise) themselves. I therefore would have concluded that it would have been sufficient for the full electronic information (i.e. the Claim Form itself [rather than just a machine enquiry from the EDS Fax machine to the MB Fax machine as to whether the latter would accept a transmission – the electronic fax equivalent to dialling a phone number and getting some tone in response] to have left the EDS Fax machine and entered into the transmission network whether or not it had then reached (but not been accepted by) the MB Fax machine; rather than there having to be shown that the MB Fax machine had actually rejected or failed to process the transmitted Claim Form electronic data. However, I am not satisfied on the balance of probabilities, for the reasons given above, that that occurred.

Accordingly, I do not consider that the Claim Form was served by Fax on the Second Defendant within the time limited by the November Order.

In relation to the contention that the Claim Form was served in compliance with CPR7.5 by DX to the MB DX Address; I accept Rana’s evidence that at some time shortly after 15.49pm it was left at the EDS reception for collection by the DX courier but that it was only collected after office hours that day, and find those facts as having been proved on the balance of probabilities. However, for the same reasons as I have stated regarding the First Defendant above, that meant that the service step was not completed within the time limited by the November Order.

For the reasons given above, I conclude that the Claimants have failed to show that they completed a CPR 7.5 service step before the time limited by the November Order.

However, the Claimants contend that the time for taking the CPR7.5 service step (or for service) was further extended by agreement to 8 June 2023. CPR2.10 provides that a variation to a rule or court ordered time-limit can occur by “the written agreement of the parties”.

That provision was considered in relation to the CPR7.5 time-limits in Thomas v Home Office [2006] EWCA 1355 (“Thomas”), where at paragraphs 13-21 it was held that CPR2.11 did enable agreed extensions of CPR7.5 time-limits (and I consider that, and which has not been challenged by the Defendants, the same will apply if such time-limits have been extended by order as here in the case of the November Order).

The Court of Appeal in Thomas then considered what was required for there to be such an extension. At paragraph 24 it was held that every variation (and not just an initial one) had to be in writing.

At paragraphs 25-29 it was said:

The Court of Appeal then went on to consider the question of a possible estoppel in paragraphs 30-33:

The Claimants contend that the parties had clearly reached a consensus in their communications in December 2022 and early 2023 that time for service of the Claim Form and Particulars of Claim would be extended to 8 June 2023. They contend that there was sufficient to amount to a “written agreement” for the purposes of CPR2.11, and where Thomas permits that to be by multiple documents. The Defendants contend that there was no agreement, and in any event not enough to constitute a “written agreement”.

With some reluctance, I have concluded that there was not sufficient in this case for there to have been a “written agreement” with regard to either Defendant although the correspondence was clearly proceeding on the basis that any agreement would be tri-partite. This is for the following reasons:

I therefore conclude that there was no sufficient agreement for an extension of the time period set out in the November Order.

The Claimants have not contended, as such, for an estoppel. However, and for similar reasons to those ventilated in Thomas, I cannot see scope for an estoppel here. There was nothing unequivocal from the GL or MB, but rather mere proposals for further discussion, and nothing which could be said to waive the need for a written agreement.

In the light of my conclusions above, I hold that the Claimant did not comply with CPR7.5. That has the consequence that I will not grant the declaration sought by the Claimants.

The Claimants contend that I have a discretion to grant them relief from sanctions and/or an extension of time for the consequences of their not having served the Claim Form on either Defendant in time. The Defendants contend that I have no jurisdiction to do so and, further, that I should not exercise any discretion which I might have.

The question as to whether the Court has jurisdiction to grant an extension of time and associated relief from sanctions in relation to a failure to comply with CPR7.5 where the application is made after the CPR7.5 time-limit has expired (as here) has been considered in numerous cases. While I have some considerable sympathy for the Claimants’ submission that it would be just in all the circumstances of this case for me to exercise any applicable discretion, I have first to consider whether I have any jurisdiction which might properly enable me to do so.

There are numerous leading decisions in this area including the judgments in (and the judgments cited in) Good Law Project Limited -v- Secretary of State for Health and Social Care [2022] EWCA Civ 355 (although that was a specialist Part 8 Claim and so only considered the relevant principles by analogy), Ideal Shopping Direct Limited -v- Mastercard Inc [2022] 1WLR 1541 and Pitalia v NHS [2023] EWCA 657 (“Pitalia”) at paragraph 32. I have also decided such cases as Joe Macari Servicing Limited -v- Chequered Flat International Inc. [2021] EWHC 3175 and Fit Kitchens v Relx [2023] EWHC 1954 (although that was only published recently) which set out the previous cases and the law in detail.

In paragraph 46 of Good Law it was said that:

I consider that all the case-law (including Barton v Wright Hassall) makes clear that:

Here it has not been, and could not be, suggested that the Claimants had taken all reasonable steps to comply with CPR7.5 in time or would have had any difficulty in doing so. They could simply have served the Claim Form by numerous different methods prior to 21 April 2023. I do not see that I have any jurisdiction to grant relief and, even if I had jurisdiction to do so, that I could exercise it in favour of the Claimants on any principled basis.

Insofar as I am asked to grant “relief from sanctions” I have to apply a Denton v White [2014] EWCA 906 analysis. The failure to comply with CPR7.5 attracts a very serious sanction and even though the gaps in time here may be very small the result is that the breach is serious and substantial. There is no good reason for the failures where service could easily have been effected if the matter had been considered before the last day, and even then by simply taking the Claim Form and an accompanying letter and envelope to the DX office before 4pm. However, whatever the answer to the first two questions, the Claimants cannot show and have not shown that it is just in all the circumstances of the case to grant relief taking into account the CPR3.9 factors which include (as does the overriding objective in CPR1.1(2)(f)) “… the need… to enforce compliance with rules, practice directions and orders..”. It would be simply contrary to the jurisdictional framework of CPR7.6 to effectively grant an extension of time contrary to its mandatory provisions (i.e. where the Claimants have not made all reasonable steps to comply with CPR7.5 in time).

I therefore refuse relief from sanctions and any other order which (of itself) would validate the service of the Claim Form as being within the time provided for by CPR7.5 (and the November Order).

The Claimants have not sought to achieve a similar result of validating service by any of the other means (CPR3.10, CPR6.15 and CPR6.16) identified above, although I consider that they would have failed had they done so as, for the reasons set out above, either the jurisdictional requirements would not have been satisfied or any discretion could not be exercised on a principled basis in their favour.

In the light of the above, I refuse to grant the Claimant (1) a declaration that there has been valid service of the Claim Form (at least in the time limited by CPR7.5(1)); (2) relief from sanctions in relation to failure to serve the Claim Form in term; or (3) an extension of time for serving the Claim Form.

The Defendants submit that if CPR7.5(1) has not been complied with then the Claim Form can no longer be served and the Claim is at an end and should be struck-out automatically. I had doubts about the correctness of that proposition and drew the parties’ attention to various case-law; and with the result that the Claimants contend that this is incorrect, that the Defendants have been served and that the Defendant cannot now (or at least should not now be able to) contest the progression of the Claim.

It is common-ground, and clear from the material before me, that:

The provision of the CPR which deals with a party seeking for the Court to decline or not to exercise jurisdiction in relation to a Claim and to have the Claim in consequence struck-out is CPR Part 11 (cited above).

It was held in Hoddinott v Persimmon [2007] EWCA 1203 that it was by use of CPR Part 11 that a defendant was (if at all) to seek to have a Claim struck-out for failure to comply with CPR7.5 in time; and that, if a defendant filed an acknowledgement of service but did not make a CPR11 application with the next 14 days, CPR11 operated to effect a statutory waiver so that the defendant could not seek to contest the Claim on the basis of out-of-time or other defective service.

In paragraphs 21-25 of Hoddinott it was held that CPR11 was engaged in this context:

In paragraphs 26-29 of Hoddinott it was held that statutory waiver consequence followed if an acknowledgement of service was filed and no application made in time under CPR11 even if the defendant had applied to set aside an order extending time for service as the wording of CPR11 was clear:

This analysis was affirmed by the Court of Appeal in Pitalia where it was also recognised that a defendant could seek to avoid the error of having failed to make a CPR11 application by making an application and seeking an extension of time (CPR3.1) or a CPR waiver (CPR3.10) of the error even though this would tend to involve a need to obtain relief from sanctions (CPR3.9 and Denton). In Pitalia an application had been made in time but was defective in form. At paragraphs 32 to 38 it was said:

I note that the Court of Appeal’s approach in Pitalia is to the same effect as my analysis in Macari and Fit Kitchen although it is, of course, the Court of Appeal’s judgment which is the binding statement of the law.

This area has, however, been further considered by the Court of Appeal in R (Koro) v County Court at Central London 2024 EWCA 94 (“Koro”) where a Part 7 Claim Form had been purportedly served but the service was said not to be in accordance with the rules and no acknowledgment of service had been filed. The court then struck out the claim on its own initiative in response to the informal submissions from the defendant that the Claim Form had not been properly served within time and so was a nullity. The Court of Appeal was mainly concerned with the procedural approach taken by the court which it held was wrong in various respects.

In paragraphs 64-70, the Court of Appeal said:

The Court of Appeal then set a procedural course for enabling the matter to be resolved. At paragraph 88 they made clear that they were not deciding as to what should happen at any full hearing of whatever turned out to be the various applications in the case.

The Claimants rely on Koro to say that there is and (in the absence of an acknowledgment of service and subsequent application) cannot be any challenge to the progress of the Claim, and that the Defendants need permission to file acknowledgements of service late which they should not have other than on condition that the Claim progresses notwithstanding the previous failure to comply with CPR7.5(1) (in relation to the Claim Form) and CPR7.4 (in relation to the Particulars of Claim) and the November Order.

The Defendants have asserted that the reasoning in Koro should be confined to the facts of that case and in any event kept without bounds and including in particular as:

In my judgment, it is clear from these authorities, which are binding upon me, that:

I note that there can also be a common-law waiver by conduct of the jurisdiction/service points (see e.g. Fit Kitchen for the applicable principles) but I cannot see anything in the material before me to suggest that such could have occurred where the defendants have been very keenly asserting points on service from 21 April 2023 onwards.

I have considered an argument advanced by Mr Calland for the First Defendant that these principles and Koro have or should have no application where the Claimants have themselves made an application for there to be determined whether or not there has been valid service. I disagree. The CPR and the case-law make clear that it is the CPR11 process which is to be followed and that otherwise a statutory waiver arises. While Claimants may seek a determination (as these Claimants have done) regarding service, the essential question is not as to whether service has occurred in accordance with the rules but whether the claim should proceed, and as is made clear by both the CPR and the case-law.

The present position is that there are no acknowledgments of service and no applications on the part of either of the Defendants. In those circumstances, it seems to me that I simply cannot decide the question of whether a jurisdiction challenge would succeed as none has been made. In theory I could waive the various failures to file acknowledgments of service under CPR3.10 and to issue application notices under CPR3.10 and CPR23.3(b) but that has not been argued fully (if at all) before me and would deserve substantial consideration including as to potential prejudice to the Claimants. Taking such a course summarily would also be, at first sight, inconsistent with the Court of Appeal’s general statement in Koro and also various other decisions such as Talos v JSC [2014] EWHC 3977, Taylor v Giovani [2015] EWHC 328 and Mansard v Beyat [2021] EWHC 3355 @ paragraphs 17 and 18 to the effect that defendants require permission to file acknowledgments of service out of time and especially where such is to be the first stage of their mounting a jurisdiction challenge.

However, I do think that I can decide the question of whether or not the Defendants require permission to file acknowledgments of service out of time. The Defendants submit that they do not because (a) the Claim Form was not served in time (CPR7.5(1)) and the November Order) and (b) the Particulars of Claim were not served in time (CPR7.4 and the November Order). They say that therefore the period in CPR10.3 for filing acknowledgements of service has never started to run.

I disagree, for the following reasons:

In this context I have considered the Defendants’ contention that the Claimants require permission to serve the Particulars of Claim out of time (as they should have been served by 4pm on 21 April 2023) and that there has been no service of them at all unless and until that permission is given. That argument has been pressed with greater force with regard to the purported (late) service of the Particulars of Claim but, logically, it can also be applied to the purported (late) service of the Claim Form.

I accept that there are various decisions which suggest that late filing or service of procedural material at the early stage of the litigation renders the material itself a nullity. That is said to be the case in relation to late filed acknowledgments of service in Talos @ paragraph 33. (Footnote: ¹)

However, I do not see the (late) service of the Particulars of Claim (or of the Claim Form) as rendering them a nullity or, more importantly, such that they prevented the period for filing an Acknowledgment of Service under CPR10.3 from running. In my judgment, when the statutory scheme is considered as a whole, and essentially for the reasons given above, the effect of proper service (even if out of time) is that the statutory scheme does operate and the time for filing an acknowledgment of service does begin once that service has taken place. This does not result in any unfair prejudice as far as a relevant defendant is concerned, they have been served and the CPR provide that the consequence of service is that the defendant must file an acknowledgment of service (which is not a burdensome matter) and has a period of time to then either defend or to challenge jurisdiction.

It therefore seems to me that one way or another the Defendants will have to obtain consent or permission to file acknowledgments of service out of time and where the Claimants are likely to contend that such should only occur on condition that no challenge to jurisdiction (and, perhaps, to the late service of the Particulars of Claim – although I have heard no argument and express no view on that) is made or succeeds (effectively a conditional order under CPR3.1(3)). Those matters are not such that I consider that I can properly, on the limited material and submissions before me, determine in this judgment.

In these circumstances, it seems to me that the Defendants will have to decide whether they wish to apply to file acknowledgments of service out of time and to make a jurisdiction challenge (technically, if the defendants simply file them out of time, the Claimants will have to seek to set them aside). This could give rise to some complexity as to order of applications, and I set out below the orders which I am intending to make to seek to ensure that everything can be sensibly advanced before and decided by the court at once.

This application is opposed by the Defendants on the basis that the Claimants are in breach of the November Order (and thus also of CPR7.4), where the Claim Form was issued at the end of some (but not other) applicable limitation periods, and where it is contended that the Claimants have delayed generally and this is not an “in-time” application but one made after the relevant time-limit expired. There is some authority – see the White Book notes at 7.4.2 and e.g. Venulum v Space 2013 EWHC 1242 - that the Court should approach the matter on a relief from sanctions CPR3.9/Denton basis, and Mr Sawtell seemed to concede that that was appropriate in these circumstances. The Claimants contend that any delay was short; the Defendants knew perfectly well the general case against them; no prejudice whatsoever has been caused to the Defendants; and the Defendants had indicated a preparedness in correspondence for the Claim Form and Particulars of Claim to be served nearly a month later; and, further, that any limitation problems (at least apart from the common-law non-personal injury claims) can be overcome by the application of section 33 (as well as the new section 4B) of the Limitation Act 1980 and that they would have a strong case under section 33 (including, they would say, because much of the substance of their claims is going to be investigated and fought out anyway). The Claimants contend that, even if there was a serious and substantial breach, and no good reason for it, it is just in all the circumstances of the case for relief from sanctions to be granted and the claim to be allowed to proceed. The Defendants contend that the Claimants are guilty of numerous delays and cannot show that it is just that an extension should be granted.

I have decided that it is not appropriate for me to decide this question in this judgment. The jurisdictional issues can be well said to logically come first (and I do not have any formal application to set aside the service of the Particulars of Claim, and it may even be that any attempt to set them aside would itself have to involve a jurisdiction challenge under Part 11 and/or that the Claimants might seek to make sanctioning the service of the Particulars of Claim a condition of permitting the late filing of an acknowledgment(s) of service – but none of those matters have yet been argued before me and so I do not express any view on any of them); but, and also importantly, the questions of who should be granted what (if any) extensions of time involve considerations of material, merits and prejudice which are heavily inter-related.

It seems to me that this aspect and the questions of extension of time for acknowledgments of service and jurisdictional challenge should all be dealt with together; and I have provided below for directions to enable that to occur.

Mr Frampton for SRL and SARL contends that the Claim has been brought against SARL when it should have been brought against SRL. He resists the Claimants’ application to amend the name of the Second Defendant to that of SRL. He contends that:

Mr Sawtell for the Claimants essentially accepts this analysis except that he contends that the amendment sought as to the name of the Second Defendant is a permissible amendment within CPR17.4(3) (and section 35) because it is the correction of “a mistake as to the name of a party” where “the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.” He would contend that it is truly SRL which has been sued, and obvious that the claim was intended to be brought against SRL so that all that is involved is a correction of name rather than substitution of a new entity, but otherwise that SRL can be substituted for SARL if, indeed, it is SARL which is the entity which has been sued. I do not think that he is contending that the matter was in some way resolved by the November Order (which referred to SARL as being the Second Defendant and was signed by MB “for Sheppard Robson”).

I note that the Court can under CPR19.6(4) authorise an amendment even if the “mistake” provisions do not apply by directing that a section 33 application to disapply the primary limitation periods in relation to a personal injuries claim should be dealt with at trial. However, that provision would not assist in relation to the common-law non-personal injury claims; and the simple solution (if Mr Sawtell is not correct on “mistake” and this Claim is not to be defeated altogether on jurisdictional or similar grounds) is to adopt the Mastercard course.

As to the issue regarding the CPR and “mistake”, the parties have cited Cameron v BDW [2022] BLR 183 where at paragraphs 59-63 it was said:

Mr Frampton contends that:

Mr Sawtell contends that:

I can see that there is potential force in Mr Sawtell’s argument that a genuine mistake was made by someone within the process of drafting the Claim Form. The clear intention was to sue the architects, notwithstanding that the Claimants had been told that it was SRL which was the relevant architect corporate entity. However, it also seems to me that there is considerable force in Mr Frampton’s criticisms of the way in which the Claimants have sought to advance this application and the absence of any evidence as to how it came about that SARL were named, who was the person responsible for SARL being named, and what was actually intended by the relevant decision-maker(s). There is also Mr Frampton’s argument to the effect that as the Claimants were told that SRL were the correct entity, they may be taken to have deliberately rejected that and chosen to sue SARL and insist that it was the entity in question.

Again, I am hesitant to decide questions of this nature where the jurisdictional and similar matters technically come first. This is all the more so as if the Claim is not struck out as against the First Defendant, but were to be struck out as against the Second Defendant, there would remain an extant Claim to which there would be jurisdiction to add a further party (e.g. SRL), if appropriate, but only on the basis that the Claim as against them would be deemed to have been commenced only on the date of their addition to it (i.e. an equivalent consequence to a Mastercard order albeit on a different underlying basis). While I could, in theory, decide whether or not the present Second Defendant is actually SRL (and not SARL), to do so could inhibit my ability to reach decisions on the various permutations which arise in this case and cause difficulties were there to be an appeal. I think that these matters can best be argued and taken together.

It also seems to me that it is in accordance with the overriding objective in these circumstances, where there is to be a further hearing in any event, for the Claimants to be given an opportunity to correct asserted deficiencies in their evidence, and all the more so where the matter has been allowed on the last occasion to proceed on written submissions alone rather than a second oral hearing. Any prejudice to SARL and SRL can be dealt with by a costs order should that turn out to be appropriate.

Having weighed up all the matters together, I conclude that it would be in accordance with the overriding objective to adjourn this aspect to the further hearing which is going to take place in relation to the other matters. The parties should liaise as to directions with regard to the filing of any further evidence.

For all these reasons:

The parties should liaise and submit in a usual way a form of order embodying the above.