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Home // Defendant still required to file acknowledgement of service despite Claimant’s failure to adequately serve.

Rushworth v Harvey [2016] EWHC 1386 (QB)


dispute had arisen between the parties, where Rushworth alleged that remuneration was due. This included reimbursements for flights paid for by Rushworth for work done for Harvey.

Rushworth had served the claim form on Harvey but failed to provide the particulars of claim and response pack. Given Rushworth’s failure to adequately serve, Harvey decided not to acknowledge service.

Rushworth subsequently sent the claim form again, with the particulars of claim and a form for Harvey to acknowledge service.  However given that months had passed, Harvey argued that the service was invalid as more than four months had passed since the claim was issued.

Considering the above, Rushworth sought to obtain a judgement in default and Harvey applied to have this set aside. It was therefore up to the High Court to decide whether judgement in default should be given or set aside.


Harvey rested on two main arguments.

Firstly, that the time for filing an acknowledgement of service had not begun so the time could not have expired as the claim form was invalid; therefore, the default judgement had to be set aside. Secondly, if Rushworth had wanted to obtain a default judgement, they should have issued an application notice under Part 23 of the Civil Procedure Rules (CPR).  Further to this, Harvey requested that the judgement be set aside on the basis that he had real prospects of successfully defending the claim as per CPR 13.3(1)

The court recognised that Rushworth had breached CPR 59.4 (which related to service of proceedings at a mercantile court), being that he failed to adequately serve a response pack with a claim form stating the particulars of claim would follow if an acknowledgement of service was filed. But as per CPR 59.5(1) an acknowledgement of service had to be filed by Harvey as the Defendant.

Legatt J highlighted that the rule does not specify that time will only begin when a response pack is served.

The court also recognised that to obtain a default judgement, an application notice under Part 23 should have been issued. This amounted to “a minor procedural irregularity” and that this did not “nullify the default judgement or provide a ground on which the court should set it aside.”

The court did however find that Harvey did actually have a real prospect of defending the claim.  Whilst the court did order Harvey to reimburse Rushworth for the flight costs being that the particulars of the claim had not in most part disclosed reasonable grounds for bringing the claim; the remainder of the claim was struck out and the judgement in default was set aside.


It should be highlighted that whilst Harvey was successful in having the default judgement set aside; the success was not attributed to Rushworth’s failure to adequately serve.

It is critical to remember that all claims are responded to in precise accordance with the Civil Procedure Rules.

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