Bellway v Occupiers of Samuel Garside House: Court of Appeal clarifies defendant’s obligations following invalid service

In Bellway Homes Ltd v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347, the Court of Appeal has provided guidance on the procedural consequences of a claimant’s failure to serve a claim form in accordance with the Civil Procedure Rules (CPR). The decision, handed down on 23 October 2025 by Lord Justice Coulson, confirms that, where a defendant has not been validly served with a claim form, it is not required to file an acknowledgment of service (AoS); or to make an application under CPR Part 11 to dispute the Court’s jurisdiction. This decision provides a useful summary of the wider principles that apply in these circumstances.

Background

The case concerned a claim brought by the residents of a building against Bellway Homes Ltd (the developer and constructor) and the building architect following a fire. The claim form was issued on 6 June 2022 An order was made that the deadline for filing and serving of the claim form and particulars of claim would be extended to 4 pm on 21 April 2023.

On the afternoon of the deadline, the claimants’ solicitors, Edwards Duthie Shamash (EDS), attempted to serve the claim form on Bellway’s solicitors, Gateley Legal LLP (GL), and the architect’s solicitors, Mayer Brown International LLP (MB), via fax and DX. However, the fax transmissions failed, and the DX collection occurred after 4 pm. The particulars of claim should have been served at the same time but were not in fact ready until May 2023.

EDS applied to the court on 28 April 2023 for a declaration that the claim form had been validly served, alternatively for relief from sanctions or an extension of time. Master Dagnall, in two judgments, found that service had not been validly effected and refused relief. However, he held that Bellway was required to file an AoS and make a Part 11 application to challenge jurisdiction, and that their failure to do so meant the proceedings could continue.

Appeal and Cross-Appeal

Bellway appealed on three grounds:

• the judge erred in allowing the proceedings to continue despite finding that the claim form was not served in time and no extension was granted;
• the judge wrongly held Bellway was required to file an AoS under CPR 10.3 despite invalid service; and
• the judge wrongly concluded Bellway could only challenge jurisdiction via a timely Part 11 application following an AoS.

The claimants cross-appealed, arguing that the claim form had been validly served by DX before 4pm on 21 April 2023.

The Court of Appeal dismissed the cross-appeal and allowed Bellway’s appeal.

The Cross-Appeal: Service by DX

Coulson LJ rejected the claimants’ argument that the claim form had been validly served by DX. CPR 7.5 requires that, for service by DX, the claim form must be “left with” or “collected by” the relevant service provider before the deadline. The evidence showed that the claim form was left in EDS’s reception for collection after 4 pm, and there was no proof it had been handed over to the DX service before the deadline.

Coulson LJ emphasised that “leaving a document out for collection” is not equivalent to “leaving with” or “collection by” the DX service. He also noted that valid service requires a positive and irrevocable act, such as posting or delivery, which had not occurred. 

The Appeal: Defendant’s Obligations Following Invalid Service

The central issue on appeal was whether Bellway was required to file an AoS and/or make a Part 11 application to challenge jurisdiction, despite the fact that the claim form had not been validly served.

Coulson LJ found that the case engaged exactly the same principles as his recent judgment in Robertson v Google [2025] EWCA Civ 1262, where he had determined that:

•  a defendant is not obliged to file an AoS where the claim form has not been validly served; and
• in cases of invalid service of the claim form, it was not necessary for the defendant to make a Part 11 application to challenge jurisdiction if the question of the validity of service was already before the court (e.g. if the claimant had already made an application to rectify invalid service).

The primary rationale derived from Robertson v Google, which also applied in this case, was that the CPR rules build upon one another such that one rule proceeds on the assumption that the previous rule has been complied with. Consequently, the obligation for a defendant to first acknowledge service if it intends to dispute the court’s jurisdiction by making an application under CPR 11 only applies if the rules governing valid service of the claim form (in particular CPR 7.5) have been complied with. 

Clarification of CPR 11 and Related Authorities

As well as confirming that defendants are under no obligation to engage with proceedings where there has been no valid service of the claim form, the decision also contains a helpful summary of the principles derived from recent authorities on the interaction between invalid service of the claim form and the defendant’s obligation to acknowledge service and possibly challenge jurisdiction: 

• if a defendant files an AoS without indicating an intention to challenge jurisdiction this is prima facie evidence that it accepts the court’s jurisdiction notwithstanding that service may have been invalid;
• even if a defendant has failed to tick the box on the AoS indicating that it intends to challenge jurisdiction, this may not be fatal if it is plain from the surrounding circumstances that the defendant does dispute jurisdiction; and
• there is no authority to support the proposition that a defendant must still use Part 11 to make an application to challenge jurisdiction even if it has not served an AoS in circumstances where it denies there has been effective service of the claim form.

Practical Implications

This decision reinforces the importance of strict compliance with CPR 7.5 (completion of the relevant step for service within 4 months of the issue of the claim form) required for valid service. Coulson LJ confirmed that claimants will not be given a “get out of jail free card” to escape the implications of failing to serve the claim form in time (i.e. having to re-issue and re-serve the claim form) by arguing that the defendant had failed to acknowledge their own failed service. 

The summary of other relevant principles contained in the judgment also highlights the importance for defendants of not falling into the trap of filing an AoS that may inadvertently cure defective service of the claim form. If a defendant files an AoS but intends to dispute service, it should tick the box indicating an intention to challenge jurisdiction. 

For all the clarity this decision provides, it does not confirm exactly how a defendant should proceed if it doesn’t accept the validity of service and the claimant hasn’t made an application to rectify invalid service (i.e. if the question of the validity of service is not already under consideration by the court). In those circumstances it would appear that the defendant’s options are either:

• to file an AoS indicating an intention to challenge jurisdiction (on the basis of invalid service) and then make a CPR 11 application;
• refuse to file an AoS and then make a separate Part 11 application for a declaration that the service of the claim form was invalid; or
• do nothing and then resist any application for default judgment that the claimant may bring for failure to file an AoS on the basis that the Court has no jurisdiction because there was no valid service.