No AoS or CPR 11 application is required where service of the claim form was invalid and time has not been extended; “left for DX collection” is not service under CPR 7.5

Commentary on Bellway Homes Ltd v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347 (CA)

Introduction

This Court of Appeal decision addresses two recurring procedural questions in civil litigation: (1) what amounts to valid service by DX under CPR 7.5, and (2) whether a defendant must file an acknowledgment of service (AoS) and/or make a CPR Part 11 application to dispute jurisdiction when a claim form has not been validly served and an extension of time is refused.

The case arises from claims brought by occupiers of flats in Samuel Garside House (Barking, Essex) following a serious fire on 9 June 2019. The first defendant, Bellway Homes Ltd, was the developer and constructor; the second defendant was the architect. Although those merits have since settled, this appeal concerns pure procedural issues surrounding the service of originating process.

The claimants issued the claim form on 6 June 2022. A consent order extended the deadline to file and serve the claim form and particulars of claim to 4pm on 21 April 2023. On that date, the claimants’ solicitors (EDS) attempted service by fax (which failed) and by DX. They also petitioned for a further consensual extension late in the afternoon which the defendants refused. EDS applied one week later for a declaration of valid service, alternatively for extensions/relief.

Master Dagnall held that the claimants had not validly served by fax or by DX in time, and that relief/extension should be refused under CPR 7.6. However, he then held that Bellway was obliged to file an AoS and/or to make a Part 11 application to dispute jurisdiction, and having found Bellway did neither in time, he permitted the proceedings against Bellway to continue. That conclusion generated this appeal.

The centrality of the Court of Appeal’s earlier decision in Robertson v Google [2025] EWCA Civ 1262, handed down the day before the hearing, shaped the outcome. The Court dismissed the claimants’ cross-appeal on service by DX, allowed Bellway’s appeal, and set aside the orders below.

Summary of the Judgment

• Cross-appeal dismissed: Leaving a claim form “out for DX collection” in the solicitor’s reception is not one of the service steps prescribed by CPR 7.5. It is neither “left with” nor “delivered to” the DX provider, nor “collected by” the provider before the deadline. On the facts, attempts to fax at and after 4pm meant the claim form could not simultaneously have been left out for DX collection by 4pm; even if it had been, it would still not meet CPR 7.5 as a matter of law.
• Appeal allowed: Where the claim form was not validly served in time and an extension under CPR 7.6 is refused, the defendant is not obliged to file an AoS (CPR Part 10) or make a Part 11 application to dispute jurisdiction. Parts 9–11 obligations are triggered only by valid service. Hoddinott does not compel a contrary result unless an AoS has in fact been filed without a timely Part 11 application.
• Robertson v Google applied: In cases where the claimant has already seized the court with an application to regularise late/invalid service, a separate Part 11 application by the defendant would duplicate costs and effort and is unnecessary.
• Koro distinguished: Koro dealt with a defendant who attempted to spring a jurisdictional objection late and without using Part 11. That paradigm is different from the present case, where the claimant promptly put the service/jurisdiction issue before the court.
• Orders below set aside: The Master’s conclusion that Bellway was required to serve an AoS and/or make a Part 11 application was wrong; the second judgment was therefore otiose and both orders were set aside.

Factual and Procedural Background (in brief)

The deadline for filing and service of both claim form and particulars (by consent order of 1 November 2022) was 4pm on 21 April 2023. EDS sought a late consensual extension on the day; when refused, they attempted fax service (unsuccessful) and purported to serve by DX. They did not file the claim form or serve particulars by the deadline.

EDS applied on 28 April 2023 for (i) a declaration of valid service, alternatively (ii) relief/extension. The Master held that service by fax and DX had not been valid and refused extension under CPR 7.6. He then held that Bellway was compelled to file an AoS and bring a Part 11 application, failing which the proceedings could continue against them. Bellway appealed. The claimants cross-appealed on the DX point.

Analysis

Precedents Cited and Their Influence

The Court traversed a coherent line of authorities, locating each within the specific procedural posture in which it arose:

• Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm): Default judgment cannot be entered on the fiction that proper service occurred when it did not. Colman J called it “bizarre” to give judgment for lack of AoS when service had never been effectively taken. This underpins the Court’s common-sense approach: defendants are not penalised for failing to respond to invalid service.
• Hoddinott v Persimmon Homes [2007] EWCA Civ 1203; [2008] 1 WLR 806: Where a defendant has filed an AoS but then fails to make a Part 11 application within 14 days, CPR 11(5) treats the defendant as having accepted jurisdiction. Hoddinott’s ratio presupposes valid service followed by an AoS; it is not authority for compelling Part 11 where no AoS has been filed and service is denied.
• Dubai Financial Group LLC v National Private Air Transport Services Co Ltd [2016] EWCA Civ 71: Where initial service is invalid but later retrospectively validated without specifying the AoS timetable, default judgment cannot be entered before the AoS time has expired; indeed, time has not started to run where service was not in accordance with law. Supports the proposition that AoS obligations are triggered only by valid service.
• Pitalia v NHS England [2023] EWCA Civ 657; [2023] 1 WLR 3584: Clarifies Hoddinott’s scope and the flexibility in treating an application to strike out as a de facto Part 11 jurisdiction challenge when it is clear jurisdiction is contested (even if an AoS check-box was not ticked). Emphasises that originating process errors are a special category justifying procedural realism.
• Hand Held Products Inc v Zebra Technologies Europe Ltd [2022] EWHC 640 (Ch) (Nugee LJ, obiter): Hoddinott does not necessarily require a defendant to invoke Part 11 where the defendant denies there has been any effective service and has not acknowledged service. It would be odd to oblige a defendant to “acknowledge service” precisely to say there was no service.
• R (Koro) v County Court at Central London [2024] EWCA Civ 94: Condemns ambush tactics: a defendant cannot hijack a hearing with an unheralded jurisdiction point; proper course is a Part 11 application. But Koro involved a late-raised challenge, unlike the present case where the claimant themselves put service/jurisdiction before the court within days.
• Robertson v Google [2025] EWCA Civ 1262: The linchpin. Holds that Parts 9–11 presuppose valid service under Parts 6–7. No AoS or Part 11 application is required where the claim form was not validly served and the claimant’s application to cure that defect is being contested. A separate Part 11 application would merely duplicate costs and effort.
• Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 and R (Good Law Project) v Secretary of State for Health [2022] EWCA Civ 355; [2022] 1 WLR 233: Establish that when a claim form is not served in time, the only route is CPR 7.6; relief under CPR 3.9/3.10 cannot circumvent the strict jurisdictional regime governing service of originating process.
• Vinos v Marks & Spencer [2001] 3 All ER 784 (CA) and Ideal Shopping Direct v Mastercard [2022] EWCA Civ 14; [2022] 1 WLR 1541: Warn against attempts to reclassify or dilute service defects; both late steps and wrong-method steps are fatal in the absence of a proper extension. The Court here resists drawing a bright-line distinction between “late” and “wrong method” service for jurisdictional consequences.

Together, these authorities support the Court’s core propositions: valid service is the gateway to defendant obligations under Parts 9–11; where service was invalid and an extension refused, a defendant need not pretend otherwise by filing an AoS or bringing Part 11; and courts will not recharacterise late service as “deemed service” under CPR 6.14 unless the step under CPR 7.5 was validly completed.

Legal Reasoning

1) Service by DX under CPR 7.5: “Left for collection” is not service

The Court upheld the Master’s factual finding that the claimants had not taken the relevant service step by 4pm on 21 April 2023. The contemporaneous attempts to fax at/after 4pm made it implausible that the same physical claim form was simultaneously left out for DX collection before 4pm. Even if the Court had inferred that it was left out by 4pm, that would still not have satisfied CPR 7.5 as a matter of law.

The Court’s doctrinal points on DX service are significant:

• Transmission to the service provider is required. “Leaving with the DX” means the document passes into the control/possession of the DX provider. A document lying in the solicitor’s reception awaiting a future courier collection has not left the sender’s possession and remains inherently revocable/editable. That is antithetical to the concept of completing a service step.
• Each service step in CPR 7.5 is both positive and irrevocable. Posting, leaving with, delivering to, or actual collection by the provider are outward-facing steps that cannot be undone. “Left for collection in reception” is neither a recognised step nor irrevocable.
• Do not conflate “left with” and “collected by”. The claimants’ argument elided the two. The rules list distinct alternatives; “left out for collection” is not one of them.
• Timing logic matters. Using DX (like first-class post) is selected because it produces delivery on a subsequent business day. If a court order requires service by a fixed deadline (here, 4pm on 21 April 2023), deploying a mode that only achieves delivery after that date means the claimants must complete the service step earlier (e.g., by leaving with DX the day before) or choose a method capable of achieving service by the deadline (e.g., personal service or email with prior consent). In any event, the deeming provision in CPR 6.14 only applies if the CPR 7.5 step has been validly completed; it does not rescue late or invalid steps.
• DX drop-box nuance. The Court noted a possible different outcome if documents were placed in a DX-owned box to which only the DX provider had a key, but made no finding on that hypothetical. The critical point is transfer to the DX, not mere internal staging.

2) Deeming under CPR 6.14 does not validate an out-of-time step

CPR 6.14 provides that a claim form “served within the United Kingdom in accordance with this Part” is deemed served on the second business day after completion of the relevant CPR 7.5 step. The Court emphasised:

• The deeming provision presupposes the relevant step was validly taken under CPR 7.5 within the required time. If the step was late or defective, the deeming does not engage.
• Accepting the claimants’ reading would hollow out CPR 7.5’s time limit and compel defendants to engage with proceedings that were never validly commenced.

3) When do Parts 9–11 obligations arise? Only upon valid service

The Court reaffirmed the core structural logic of the CPR (per Robertson):

• Parts 6–7 govern how a claimant validly commences and serves proceedings. Parts 9–11 then set out a defendant’s responses. The latter assume the former have been complied with.
• Absent valid service, there is no duty to file an AoS (CPR 10.1–10.3) and no need to bring a Part 11 application, unless the defendant voluntarily chooses to raise a jurisdiction challenge through that route.
• Hoddinott’s acceptance-of-jurisdiction consequence arises only where an AoS has in fact been filed and no Part 11 application is made within the 14-day window thereafter. It has no application where no AoS is filed because there was no valid service to trigger it.
• Where, as here and in Robertson, the claimant promptly applies to rectify invalid/late service and the defendant opposes, there is no need for a separate Part 11 application—jurisdiction is already “front and centre” for determination. A Part 11 application in that setting would duplicate paper, time, and cost.
• Koro remains good law against “ambush” jurisdiction objections. If the defendant wants to raise jurisdiction late or for the first time at an unrelated hearing, the proper course is Part 11. That was not this case.

Impact and Practical Significance

A. Service by DX: heightened clarity and risk management

• “Left for DX collection” does not complete the CPR 7.5 service step. Firms must ensure transfer to DX control—typically by depositing in a DX facility/box owned by DX or arranging collection completed before the deadline.
• Document handling logistics matter. If a claim must be served by a fixed time on a date, counsel and solicitors must select a service method capable of achieving that deadline (e.g., personal service or email with prior written consent and clear record). DX and first-class post are inherently unsuitable to achieve “same day” service deadlines because of deeming rules.
• Contemporaneous attempts to serve by one method (e.g., fax) after the deadline may undermine assertions that the same documents were simultaneously transferred to a service provider before the deadline. Evidence management is critical.

B. Defendant obligations: no AoS/Part 11 duty absent valid service

• Defendants are not obliged to “acknowledge” invalid service nor to lodge Part 11 applications if the claim form was not validly served and the court refuses an extension under CPR 7.6.
• Where the claimant promptly applies to regularise service and the defendant opposes, that opposition suffices to put jurisdiction in issue. A separate Part 11 application is unnecessary and may be disproportionate.
• Hoddinott’s acceptance-of-jurisdiction mechanism (CPR 11(5)) is confined to cases where an AoS was actually filed and a timely Part 11 application was not. Pitalia shows flexibility where paperwork imperfectly flagged the jurisdiction objection but the substance was clear.
• Koro continues to police procedural fairness: defendants who keep silent and then spring jurisdiction points must use Part 11 and should expect case management controls to avoid ambushes.

C. Claimant strategy and extensions under CPR 7.6

• Where service is in doubt, claimants should move swiftly under CPR 7.6. The Barton/Good Law Project line bars recourse to CPR 3.9 or 3.10 to cure failure to meet CPR 7.5. The threshold “all reasonable steps” requirement for retrospective extensions is demanding; a “casual” approach, late-day negotiations for consensual extensions, or eleventh-hour multi-method attempts are risky.
• When using DX or post, plan backwards from the deemed date of service and any order-specific deadline. If service must be achieved by Date X, a method whose deemed service falls after Date X will not suffice.
• Consider obtaining and recording the defendant’s consent to email service in advance; absent consent or court order, email is not a permitted method for a claim form.

Complex Concepts Simplified

• Service “step” under CPR 7.5: For each permitted method, the CPR defines a discrete act the claimant must complete (e.g., leaving with DX, posting, personal service). It must be completed within the validity period (or any court-ordered date/time). It is not enough to prepare documents or stage them for later collection.
• Deemed service (CPR 6.14): For claim forms, service is treated as occurring on the second business day after completing the CPR 7.5 step. The deeming rule applies only if the underlying step was validly completed; it does not “rescue” a late or invalid step.
• Acknowledgment of Service (AoS) and CPR 11: AoS is the defendant’s notification to the court that it has received the claim and its procedural intentions. CPR 11 is the mechanism for disputing the court’s jurisdiction. These obligations are triggered by valid service of the claim form. Filing an AoS without a Part 11 application within 14 days typically signifies acceptance of jurisdiction (Hoddinott), but context can soften that result (Pitalia).
• Jurisdiction vs. procedure: A failure to serve in accordance with CPR 7.5 does not make the issued proceedings a nullity, but it means the court will not try the claim against a defendant who has not been validly brought before it—unless time is extended under CPR 7.6 or service is otherwise regularised.
• DX vs. “left for collection”: “Left for collection” in a solicitor’s own reception is not a recognised CPR 7.5 step. Transfer of custody to the service provider (or actual provider collection) is required to complete the service step.

Why Robertson v Google controlled the outcome

The Court considered whether Robertson could be distinguished on the basis that it involved a “wrong method” case, whereas this case was “merely late” service. The Court rejected that split:

• CPR 6.14’s deeming rules do not transmute a late or invalid step into valid service. The deeming mechanism only applies where the CPR 7.5 step was properly taken.
• Attempting to separate “wrong method” from “late” service is unhelpful; both vitiate valid service absent an extension under CPR 7.6 (Vinos; Ideal Shopping).
• Robertson’s core reasoning is method-agnostic: Parts 9–11 are triggered by valid service, not by any and all attempts to serve. Where a claimant promptly applies to regularise defective service and the defendant opposes, no separate Part 11 application is required to preserve the jurisdiction objection.

Key Takeaways and Practice Points

• Do not rely on “left for DX collection” in your own reception as completing the CPR 7.5 step. Ensure transfer of control to the DX provider (e.g., DX drop-box) by the relevant deadline or use a method capable of achieving service by the ordered date/time.
• Plan for deemed service. If an order requires service by a fixed date/time, a method with deemed service on a later business day may be unsuitable unless the step is completed earlier to land the deemed date/time within the deadline.
• Where service is defective and time is refused under CPR 7.6, defendants need not file an AoS or bring Part 11 just to say “there was no service.” If the claimant seizes the court with an application to regularise service, opposing that application suffices to put jurisdiction in play.
• Hoddinott remains potent where an AoS is filed without a timely Part 11 application—this will generally be treated as acceptance of jurisdiction. If in doubt, use the Part 11 route and make your position explicit.
• Beware Koro-style ambushes. If raising jurisdiction late or for the first time at an unrelated hearing, use Part 11 and expect the court to case manage tightly to avoid prejudice.
• CPR 3.9/3.10 cannot be used to circumvent CPR 7.6 when a claim form is served late. Barton and Good Law Project foreclose that path.

Conclusion

Bellway Homes establishes and consolidates two important points of procedural law.

1. Service by DX requires actual transfer to the DX service provider. “Leaving for collection” in a solicitor’s reception is not a CPR 7.5 step. The act must be positive and irrevocable (posting, leaving with, delivering to, or actual collection by the provider). Deemed service under CPR 6.14 applies only where the CPR 7.5 step was validly completed within time.
2. A defendant’s obligations under Parts 9–11 arise only upon valid service. Where the claim form was not validly served and an extension under CPR 7.6 is refused, the defendant is under no duty to file an AoS or bring a Part 11 application to dispute jurisdiction, especially where the claimant has already placed the service/jurisdiction issue before the court. Hoddinott’s acceptance-of-jurisdiction consequence applies only when an AoS has in fact been filed without a timely Part 11 application. Koro guards against ambushes but does not compel AoS/Part 11 where service never occurred.

The decision aligns with Robertson v Google and earlier authorities such as Shiblaq, Dubai Financial Group, and Pitalia, and it reinforces the coherent architecture of the CPR: valid service is the gateway. For claimants, the message is straightforward—treat service deadlines with real discipline, choose methods that can satisfy order-specific timing, and do not expect deeming provisions to cure late or defective steps. For defendants, the case confirms they are not forced to engage with proceedings not validly commenced, nor to “pretend” service was valid by filing AoS or Part 11 where it was not.