Pitalia & Anor v NHS England [2023] EWCA Civ 657 (09 June 2023)

Pitalia & Anor v NHS England [2023] EWCA Civ 657 (09 June 2023)

The failure of the Respondent to expressly refer to CPR 11(1) in its application to strike out the claim was a procedural error capable of rectification under CPR 3.10. The application, made within 14 days of acknowledgment of service and supported by evidence, made clear the intention to challenge jurisdiction for late service. CPR 3.10 could be used to treat the application as compliant with CPR 11(1), and the Respondent was entitled to challenge jurisdiction. The claim was properly struck out for late service of the claim form.

Citation
[2023] EWCA Civ 657
Parties
Appellant (claimant): Dr Sanjay Pitalia; Appellant (claimant): Dr Shikha Pitalia; Respondent (defendant): NHS England (formerly known as the National Health Service Commissioning Board)
Jurisdiction
England and Wales
Judgment Date
09 June 2023
Procedural Posture
Civil Appeal / Second Appeal to the Court of Appeal From the County Court at Manchester
Outcome
Appeal dismissed
Legal Topics
Service of Claim Form, Jurisdiction, Rectification of Procedural Errors, CPR 7.5, CPR 7.6, CPR 11, CPR 3.10
Civil Procedure Service of Claim Form Jurisdiction Rectification of Procedural Errors CPR 7.5 CPR 7.6 CPR 11 CPR 3.10

Case Brief

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Parties

Dr Sanjay Pitalia

Appellant (claimant)

Dr Shikha Pitalia

Appellant (claimant)

NHS England (formerly known as the National Health Service Commissioning Board)

Respondent (defendant)

Procedural Posture

Civil Appeal / Second Appeal to the Court of Appeal From the County Court at Manchester

Legal Issues

  1. 1 Whether a defendant who fails to expressly apply under CPR 11 to challenge jurisdiction within 14 days of acknowledging service can have the court rectify this error under CPR 3.10 and strike out the claim for late service of the claim form.
  2. 2 Whether the application to strike out, not expressly made under CPR 11, can be treated as such by rectification under CPR 3.10.

Ratio Decidendi

The failure of the Respondent to expressly refer to CPR 11(1) in its application to strike out the claim was a procedural error capable of rectification under CPR 3.10. The application, made within 14 days of acknowledgment of service and supported by evidence, made clear the intention to challenge jurisdiction for late service. CPR 3.10 could be used to treat the application as compliant with CPR 11(1), and the Respondent was entitled to challenge jurisdiction. The claim was properly struck out for late service of the claim form.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed; the order striking out the claim stands.