On 9 June 2023, the Court of Appeal handed down judgment in the case of Pitalia v NHS England [2023] EWCA Civ 657. 

Aidan Reay appeared successfully on behalf of the Respondent, NHS England.

The case concerned a common occurrence: the Appellants had failed to serve their claim form within 4 months of issue. When a sealed claim form was finally served, the Respondent filed an acknowledgment of service and promptly applied to strike out the claim for breach of CPR r.7.5. 

The Appellants argued at first instance before the district judge and on appeal to the circuit judge and then the Court of Appeal that the Respondent’s application could not succeed because it was not an application under CPR part 11, as mandated (it was argued) by the Court of Appeal decision in Hoddinott v Persimmon Homes (Wessex) Limited [2008] 1 WLR 806.

The Respondent was successful in striking out the claim at first instance. On appeal to His Honour Judge Pearce ([2022] EWHC 1636 (QB)), it was held that the application should have been brought under CPR part 11 but the failure to have made the application under part 11 was an error which could be cured under CPR r.3.10.

The Court of Appeal has now upheld His Honour Judge Pearce’s decision. Bean LJ’s judgment notes that the failure to make the application under the correct procedural gateway  was “just the sort of technical error for which CPR 3.10 was designed.” 

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