Bellway Homes Ltd v The Occupiers of Samuel Garside House

Hearing date: 8 October 2025

Judgment Approved

Introduction

This appeal is concerned with the procedural rights and obligations of a defendant in circumstances where, on the claimant's application, the court at first instance ruled that: a) the claim form was not served in accordance with the date set out in an earlier order; and b) the claimant is not entitled to an extension of time. There is a cross-appeal which argues that the judge was wrong to find that the claim form was not served in time.

The day before the hearing on 8 October 2025, a different constitution of this court handed down judgment in Robertson v Google [2025] EWCA Civ 1262 (“ Robertson”). Unless it could be distinguished, that authority indicated that the appeal in this case was well-founded. Both the cross-appeal and the centrality of Robertson meant that it was sensible to hear first from Mr Sawtell, who appeared for the respondent.

Having heard Mr Sawtell's clear and focused submissions on those two issues, the court announced at the appeal hearing that it would dismiss the cross-appeal and allow the appeal, with detailed judgments to follow. This judgment sets out my reasons for joining in with that decision.

The Factual Background

The factual background is set out at length in the first judgment of Master Dagnall (“the judge”) dated 25 June 2024 ( [2024] EWHC 1579 (KB)) at [18]–[62]. However, for the purposes of this appeal, the relevant facts can be summarised much more shortly.

On 9 June 2019, there was a serious fire at Samuel Garside House, 2 De Pass Gardens, Barking in Essex (“the building”). The claimants, and respondents to this appeal, are occupiers of various flats within the building. The claims are for personal injury, physical damage and economic loss. The first defendant, Bellway Homes (“Bellway”), was the developer and constructor of the building. The second defendant was the architect. The proceedings against them have subsequently been settled.

The claim form was issued on 6 June 2022. There were delays in the preparation of the claim. Eventually it was agreed that the deadline for the claimants to file and serve the claim form and the particulars of claim would be extended to 4pm on 21 April 2023. That agreement was confirmed by an order of the court dated 1 November 2022.

The claimants' solicitors were Edwards Duthie Shamash (“EDS”). Bellway's solicitors at that stage were Gateley Legal LLP (“GL”). Both the Nazir email address, and the Johnson email address, referred to below, were email addresses of solicitors at GL. The second defendant's solicitors were Mayer Brown International LLP (“MB”).

In relation to the service of the claim form, it appears that EDS were rather casual about the date of 21 April 2023. For instance, on the face of the correspondence, little if anything happened in the two months leading up to that critical date. Thereafter, as set out in the judge's judgment, the service of the claim was purportedly effected in the following way:

“44. On 21 April 2023 at 2.17pm EDS emailed GL to the Nazir Email Address stating “The deadline for service of the claim is today. Can you confirm whether you will agree to execute a consent order to postpone the deadline by three months… We are due the final expert's report by the beginning of May…Forgive us for the time constraints but may we have your reply by 2.45pm after which time we will serve the claim and would be content to continue the discussions on the stay thereafter.” At 15.22pm EDS emailed a proposed consent order. At 3.53pm a Roger McCourt of GL, with an email which bore the Leeds Telephone Number, responded to refuse in circumstances “where you are proceeding to serve a claim form…” At 4.18pm EDS responded to say that their Salma Hussain had confirmed with a “Barbara” at GL their fax number but that “That fax number has not been recognised.” and said “given the issues with the fax at your end, can you confirm that our email timed at 15.44… can be accepted as service of the claim.”

45. On 21 April 2023, EDS sent or purported to send, by way of service, the Claim Form to GL by DX to the Leeds DX Address and by fax under cover of a letter of 21 April 2023 which also referred to Service by Fax (giving a Leeds Fax Number) and which stated that it was sent “(by way of copy only)” to the Johnson Email Address; and invited a stay. EDS contend that they sought to send the Claim Form to GL by fax at 4pm, but which failed, and by DX (and I deal with what actually happened further below).

46. Also on 21 April 2023, EDS sought to send the Claim Form by fax (and also by email) to MB. EDS contend that they then sought to send the Claim Form to MB by fax at 15.49pm, but which failed, and by DX (and I deal with what actually happened further below).

47. On 27 April 2023, GL replied by emailed letter which bore the Leeds Address and did not have any fax number to say that: (i) the Claim Form had not been served in accordance with the November Order and where there had been no previous indication of a preparedness to accept service by fax or electronic means (ii) there was also a serious failure to serve Particulars of Claim in time and (iii) they would be applying to strike-out the claim under CPR3.4(2)(c).

48. On 27 April 2023, MB sent EDS a letter referring to emails on 21 April 2023, and stating that they had not received any fax, and saying that the Claim Form (and Particulars of Claim) had not been served in time and any application for leave to serve them would be resisted and they would apply to strike out the Claim. They repeated that the Claimants had issued and attempted to serve the wrong entity.

49. On 28 April 2023, the Claimants applied for a declaration that the Claim Form had been served, alternatively for relief from sanctions for any failure to serve the Claim Form and Particulars of Claim in time and/or for an extension of time. The application was supported by a witness statement of Kavita Rana (“Rana”) of EDS of 28 April 2023 and which referred to the past events and which I have considered in its entirety but which in particular (i) stated there had been an agreement to extend time for service to 8 June 2023 (ii) referred to the history (iii) said that Salma Hussain of EDS had spoken to a “Barbara” at GL at 15.22 on 21 April 2023 and asked for confirmation of the Leeds Fax Number, which Barbara gave (iv) stated that EDS sought to fax the Claim Form to GL at around 3.45pm but received an error message and then tried and failed again (v) stated that Ms Hussain confirmed the fax number with Barbara at about 3.45pm (vi) stated that the fax did not deliver to GL (vii) said that attempts had been made to fax the Claim Form to MB on 21 April 2023 but had failed (vii) stated that relief from sanctions was sought in relation to all matters, should such be required, and including because EDS were seeking to comply with a Protocol process but the Defendants had refused to accept the agreed extension to 8 June 2023.”

One of the many issues that arose before the judge concerned what had been happening at EDS's offices on the afternoon of 21 April 2023. At [61], the judge said:

“i) The third witness statement from Rana referred to: the documents being sent to both GL and MB by DX on 21 April 2023; the documents having been prepared for DX following 3.40pm then being placed in a designated area of the EDS office reception for collection by the DX courier and such usually occurring “after office hours” with the DX courier having a key to the office; a series of Fax transmissions having been sought to be made to the Fax numbers obtained for GL and MB before (MB) at (GL) and shortly after (MB) 4pm on 21 April 2023 and such having all failed; a print-out for the first (15.49pm to MB fax) with an error code ##280 which the relevant machine supplier indicated suggested an error at either the sending fax machine or the receiving fax machine or in between them; print-outs for the second and third faxes suggesting that the faxing failed because of feeding problems into the EDS system; the fax machine having sent faxes that day to other fax numbers successfully; and there having been on other subsequent days problems in sending faxes to GL and MB”

It appears that the attempts to send the claim form by fax took between 3.49pm and at least 4.03pm.

It was immediately apparent to EDS that there was or could be a dispute about valid service (and therefore the court's jurisdiction). That explains why just a week later, on 28 April 2023, they applied to the court for a declaration that the claim form had been served in time, alternatively relief from sanctions for any failure to serve the claim form in time and/or for an extension of time. It was that application that led to the judge's first judgment noted above.

The first issue for the judge in his first judgment concerned service by fax, which the judge dealt with between [95]–[103]. He concluded that the claim form had not been validly served by fax on Bellway [103], a conclusion he repeated in respect of the second defendant [122].

The next issue was whether the claim form had been served in time by DX. The judge considered the relevant material at [104]–[113] but concluded at [113] that valid service by DX on Bellway had not been effected in time. He...