Rules of engagement

Some may have thought, beguiled no doubt by the definition of 'jurisdiction' in Part 2.3, that 'jurisdiction' in Part 11 of the Civil Procedure Rules (CPR), which deals with challenges to the court's jurisdiction, referred to territorial jurisdiction. For example, where the villa owner from Tossa del Mar does not think that she should have to litigate in Weston-super-Mare County Court about her disgustingly contaminated swimming pool. The Court of Appeal's judgment in Hoddinott v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203 '“ a decision that may not have received the attention it deserves '“ disabused us of that notion and held that Part 11 was engaged in circumstances that raise interesting questions about the conduct of litigation generally.

The claimant had obtained without notice an order extending time for service of the claim form. When the defendant received a copy of the claim form (before formal service) he applied to have the without notice order set aside. The claim form was then served, and the defendant entered an acknowledgement of service and ticked the box to indicate his intention to defend but did not tick the box to challenge jurisdiction. The application to set aside the without notice order was granted by the district judge. An appeal was catapulted by a High Court judge straight to the Court of Appeal, who held that Part 11 was engaged, that it was not restricted to questions about territorial jurisdiction and that as the defendant had not indicated an intention to dispute jurisdiction and had not applied within 14 days to challenge jurisdiction, the defendant was deemed by the provisions of Part 11 to have accepted that the court had jurisdiction to hear the claim despite the late service of the claim form.

A question of jurisdiction

The crucial question for defendants now is when is Part 11 engaged; when is the court's jurisdiction being challenged? Unfortunately, there is little guidance in Hoddinott other than that Part 11 is engaged in a case where the claim form has not been served in time.

But consider other situations. Take the Landlord and Tenant Act 1954, where the court's jurisdiction to grant a new tenancy is entirely statutory and depends on one or other of the parties having fulfilled conditions such as service of a notice requesting a new tenancy and having made an application within time limits. In 1971, s.29(3) of the Act said that 'no application under section 24 of this act { for a new tenancy} shall be entertained, unless it is made not less than two or more than four months after'¦ the making of the tenant's request for a new tenancy'. In Kammins Ballrooms Co Limited v Zenith Investments (Torquay) Limited [1971] AC 850 the tenant applied to the court too soon and objection was taken.

The first question on appeal to the House of Lords was whether the court has jurisdiction to entertain the application for a new tenancy: 'The fundamental question is, what is procedural and what is not?' Viscount Dilhorne was of the opinion that the court should not hear the application for the new tenancy because the provisions went to the court's jurisdiction. The majority however disagreed. The requirements were 'only procedural'.

If a statutory provision that the court shall not entertain an application unless certain requirements are met is a purely procedural matter not going to jurisdiction, then it is not immediately obvious why matters such as time limits for service of the claim form do raise questions which go to the court's jurisdiction.

To take another example, the next time a defendant wishes to pursue a point relating to a s.8 notice on a claim for possession under the Housing Act 1988, must he tick the box to challenge the court's jurisdiction and make an application to dispute jurisdiction within 14 days or be deprived of his defence? Section 8 says: 'The court shall not entertain proceedings for possession '¦ unless' notice has been served or the court considers it just and equitable to dispense with notice. On the strength of Hoddinott that would seem to go to jurisdiction (so that a defendant would need to apply under Part 11), but if one follows what was said in Kammins it does not.

Will we see a marked increase in applications under Part 11 by defendants who are unsure whether the defence they wish to raise goes to the court's jurisdiction or not? Time will tell.

No more verbiage

On a separate note, the Civil Procedure Rules 1998 (CPR) 49th update comes into force on 6 April 2009. Claims issued online using Money Claim Online or through the Production Centre are on the increase and one problem has now been addressed in the update: where particulars of claim are too long to fit in the very limited space available electronically, it will now be possible to serve them separately.

No more should we see a solid mass of verbiage, with no punctuation, no spaces between words and with words broken at line ends '“ creating deciphering challenges similar to those presented by Linear B tablets when they were seen for the first time. Things should be clearer, if less intriguing.

The fast track trial limit is increased to £25,000. This provision will apply to claims issued after 5 April 2009 and will bring a significant chunk of litigation within the more streamlined fast track procedure, and also within the district judge's automatic jurisdiction.