DISPUTING SERVICE: USING THE RIGHT PROCEDURE: THE APPLICATION OF CPR 3.10

“The means which CPR offers to dispute service is via Part 11. This is reflected in paragraph 5.01 of Briggs, “Civil Jurisdiction and Judgments” (6th ed.) to which both parties referred for their different points:
“If it may be shown that service has not been properly made, it will be open to the defendant to dispute the jurisdiction and to ask the court to declare that it has no jurisdiction; it may be open to the claimant to ask the court to cure or overlook any shortcoming which may be regarded as an irregularity.”
It also reflects both the structure of the CPR and the notes to Part 11 which indicate that any challenge to jurisdiction (including service) should proceed by way of Part 11 challenge. This position was recently confirmed by Popplewell J in IMS SA and others v Capital Oil and Gas [2016] EWHC 1956 (Comm).”

Civil Litigation Brief

In Bank of Boroda, GCC Operations -v- Nawayny Marine Shipping FZE [2016] EWHC 3089 (Comm) Ms Sara Cockerill QC (sitting as a Deputy Judge of the High Court) considered issues in relation to disputing service. What is interesting  here is that the judge exercised her discretion under CPR 3.10 in a case where the defendant had (correctly) made an application under CPR Part 11.

KEY POINTS

  • In disputing service the defendants had correctly made an application under CPR Part 11.  Part 11 was the appropriate mechanism.
  • The filing of an acknowledgement of service did not act as a waiver of the defendants’ right to take issue with service.
  • It was, however, appropriate for the court to make an order under CPR 3.10. to rectify matters.

THE CASE

The defendant issued an application to dispute service.  There were a number of defendants, however the claimant only served one original claim form…

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