Adam Taylor discusses the complications which can arise in respect of filing an acknowledgement of service


The form of acknowledgement of service prescribed by the Civil Procedure Rules (CPR) looks simple: there are just three boxes to tick and some straightforward details required. In most cases, the defendant has only 14 days in which to return it to the court. The temptation is to complete it quickly, give notice of an intention to defend, and consider the nature of the defence at greater leisure. The form can, however, mislead, as Hoddinott & others v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203 shows.



The claimants farmed land in Wiltshire. They agreed that the defendant should lay a sewer across the farm and reinstate the land. The defendant began work in October 1999 but, the claimants alleged, did not reinstate. The claimants instructed solicitors, who issued proceedings in May 2006. CPR 7.5(2) allows four months for the service of a claim form. Nine days before the deadline, the claimants' solicitor applied without notice to the defendant for an extension of two months. In his supporting statement, the solicitor submitted that an extension would allow him time to obtain expert evidence, quantify the claim and serve particulars. A district judge granted the application.



The claimants informed the defendant, who, before service of the claim form, applied to set aside the order. On service, the defendant's solicitors completed the form of acknowledgement. They ticked the box 'I intend to defend all of this claim'. They did not tick the box 'I intend to contest jurisdiction'.



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



The claimants argued before a second district judge that, since the defendant had failed to tick the appropriate box and to apply for a declaration, it could not apply to set aside the order. The district judge disagreed; an application for a declaration was otiose - a party should not have to apply more than once for the same relief. Expiry of a limitation period was 'a consideration', but did not 'allow the court to escape from its duty to find an acceptable reason for extending the time for service'. That an expert's report was awaited might explain delay in serving particulars of claim, but not a claim form. The second district judge set aside his colleague's order.



The first question which arose on appeal was the meaning of 'jurisdiction'. The Court of Appeal held that, notwithstanding CPR 2.3 (which defines jurisdiction as England and Wales and adjacent UK waters), in CPR 11 the word refers 'to the court's power or authority to try a claim'. But, submitted counsel for the defendant, the court did have power to try the claim; it would be able to do so if it extended the time for service of the claim form. Perhaps, rejoined the court, but a defendant who intended to pursue such an argument must first apply for a declaration that the court should not exercise its jurisdiction.



It is worth pausing to consider the Court of Appeal's definition of jurisdiction. The two meanings considered are closely connected. The secondary meaning, 'the territory over which judicial power extends', derives from the first, 'legal authority or power'; the courts of England and Wales have power to decide cases arising within those countries, which thus constitute the courts' jurisdiction. A court can decline to exercise its jurisdiction by, for example, deciding that the courts of another state provide a more convenient forum - the situation which the rules committee presumably had in mind when drafting CPR 11(1)(b). But a court which refuses to make an order does not decline to exercise its jurisdiction. The district judge in Hoddinott could, when setting aside the order extending the time for service, have struck out the claim form pursuant to CPR 3.4(2)(c). Could it be said that, in making such an order, he had not exercised 'authority or power'? There is a difference between 'can' and 'will'; refusing an order is as much an exercise of a court's power as granting one.



The remainder of the court's judgment follows from its interpretation of CPR 11. The rule is mandatory; a failure to apply within 14 days of acknowledging service for a declaratory order is fatal to any later argument that time for service of the claim form should not be extended. The defendant was to be treated 'as having abandoned its application to set aside the order extending the time for service'. This conclusion, the judgment continues, 'is reinforced by the fact that, in this case, the defendant indicated on the acknowledgement of service that it did not intend to contest jurisdiction and did intend to defend the claim'.



The implications of this judgment appear far-reaching. It seems to follow that a defendant who wants to persuade the court not to make an order, for example, because the relevant limitation period has expired or because of some procedural defect, must give notice of his intention to contest jurisdiction and make an application within 14 days of filing his acknowledgement.



Hoddinott also holds two lessons for claimants. First, in Lord Justice Dyson's words, 'if a claimant applies for and obtains an extension of time for service of the claim form without giving notice to the defendant, he does so at his peril. He should know that an order obtained in such circumstances may be set aside'. Second, always check the limitation period before issuing a claim: the agreement in issue in Hoddinott was under seal; the limitation period was 12 years, not six; the battle was all in vain.



District Judge Taylor sits at Horsham County Court