General Liability newsletter – February 2026

Welcome to the latest edition of our general liability newsletter. In this edition we look at a Defendants obligations following invalid service of the Claim Form, rules on withdrawing accepted part 36 offers, the effectiveness of the Fixed Recoverable Costs regime and the Court of Appeal decision in Jayden James Smithstone v Tranmoor Primary School [2026] EWCA Civ 13.

A Defendant’s obligations following invalid service of the Claim Form

The Court of Appeal's judgment in Bellway Homes Limited v The Occupiers of Samuel Garside House [2025] EWCA Civ 1347, following shortly after Robertson v Google [2025] EWCA Civ 1262, reinforces the principle that where a Claim Form has not been validly served within time, a Defendant is generally under no obligation to acknowledge service or make an application under CPR 11 to dispute the court's jurisdiction.

However, both decisions leave open some practical and unresolved issues, particularly as to when a Part 11 application may still be advisable.

Background of the dispute

The Claimant suffered personal injury because of a fire at a property developed by Bellway. Proceedings were issued just three days before expiry of the primary limitation period. The parties subsequently agreed a six-month extension for service of both the Claim Form and Particulars of Claim, which was formalised by a court order.

Despite this extension, the Claimant's solicitors failed serve proceedings by the agreed deadline. On the final day for service, they sought a further three-month extension by email at 2:17pm. As the 4pm deadline approached, they attempted to serve only the Claim Form (without the Particulars of Claim) by fax and/or DX.

Bellway's solicitors responded by confirming instructions to apply for strike-out under CPR 3.4(2)(c ), on the basis of non-compliance with the rules or a court order. In turn, the Claimant applied for a declaration that the Claim Form had been served in time, or alternatively for relief from sanctions and/or an extension of time.

The decision in the first instance

Master Dagnall held that the Claim Form had not been validly served and refused both relief from sanctions and any extension of time. Nevertheless, the Claimant's argument that Bellway was still required to file an acknowledgment of service and make a Part 11 application. Bellway's attempt to do so out of time was rejected, with the result that the Claim was permitted to proceed.

Court of Appeal: Service was invalid

The Court of Appeal agreed that service had not been affected in accordance with CPR 7.5. Leaving the Claim Form out for DX collection did not amount to "posting, leaving with, delivering to or collection by" the relevant service provider. For service to be effective, there must be a clear and irreversible act of transmission.

The court also reaffirmed the principle from Barton v Wright Hassall LLP that, where service has not been validly affected in time, the Claimant's sole remedy is an application for an extension under CPR 7.6. The relief from sanctions regime under CPR 3.9 or 3.10 has no application in this context.

Was Bellway required to take procedural steps?

Having confirmed that service was invalid, and that no extension should be granted, the Court of Appeal turned to the critical question: was Bellway nonetheless required to acknowledge service or formally contest jurisdiction?

In addressing the issue, the court reviewed earlier authorities. In Hoddinott v Persimmon Homes, a Defendant who filed an Acknowledgment of Service indicating an intention to defend, without making a Part 11 application, was treated as having accepted jurisdiction.

Conversely, in Pitala v NHS, a strike-out application that did not expressly rely on Part 11 was held sufficient where it was clear from the context that jurisdiction was being challenged.

Where jurisdiction is an issue the court may infer than an applications seeking strike-out encompasses a jurisdictional challenge even if Part 11 is not explicitly cited.

The Claimant relied heavily on R(Koro) V County Court at Central London [2024] EWCA 94, where defective service was raised very late in proceedings. In that case, the Court of Appeal held that jurisdiction could only be challenged by a formal Part 11 application, however in Bellway, service and jurisdiction were raised immediately and were central to the case from the outset.

No Obligation where service is invalid

In both Robertson and Bellway, the Defendants had not remained silent but were responding to the Claimant applications aimed at salvaging defective service. Against that backdrop, the Court of Appeal concluded that a Part 11 application would have served no practical purpose since the court was already required to determine whether it had jurisdiction.

In Bellway, Coulson LJ stated that, as a matter of common sense, where a Claim Form has not been served in time and no extension has been granted, the Defendant is not subject to the court's jurisdiction at all. Andrews LJ added that it would be illogical for procedural rules to force a Defendant to submit to jurisdiction in circumstances where service had never been validly effected, particularly where an extension had been sought and refused.

However, the reasoning leaves room for uncertainty. The emphasis placed on the fact that an extension had been applied for, and refused, raises the question of whether the position might differ where a Claimant takes no steps to remedy defective service.

The decision in Koro remains good law and includes the observation that proceedings do not simply cease to exist because service was later. This creates a potential gap in cases where service is invalid but neither party actively raises jurisdiction at an early stage.

In such scenarios, a Defendant who does nothing risks Default Judgment and the need for a later set-aside application. There is also a risk that a failure to raise jurisdiction could be treated unfavourably, depending on the procedural history.

Rules on withdrawing accepted Part 36 offers

Part 36 offers are a cornerstone of settlement strategy in civil litigation, designed to encourage reasonable resolution without trial. However, once an offer has been made, the ability to withdraw it is tightly governed by the Civil Procedure Rules, particularly CPR 36.10. A recent High Court decision in Chinda v Cardiff and Vale University Health Board [2025] EQHC 26292 (KB) illustrates how the courts approach applications to withdraw or amend a Part 36 offer before it becomes binding.

Under CPR 36.10, an offeror may seek to withdraw or change the terms of a Part 36 offer before the end of the expiry of the relevant period- typically 21 days from service of the offer, however, only in specified circumstances.

In Chinda, the Claimant sought the court's permission to withdraw a Part 36. The offer was made on 2 July 2022, withdrawn on 8 July and ultimately accepted by the Defendant on 22 July 2022 (within the 21 days). 

The Claimant, severely injured through clinical negligence, had made a Part 36 offer that included a retained lump sum, periodical payments and provisional damages. Before the expiry of the relevant period, he attempted to withdraw the offer and propose an alternative settlement structure involving a lump sum and provisional damages calculation. The Defendant had already accepted the original offer before that expiry.

Because the offer had been accepted within the relevant period, the courts permission under CPR 36.10 (2) (b) was required for withdrawal. The sole issues, therefore, became whether there had been a change of circumstances justifying the withdrawal, specifically, whether there had been a change of circumstances justifying the withdrawal and whether withdrawal was in the interests of justice.

Master Cook declined the Claimant's application. Crucially, the judge held that the Claimant's change of mind as to the form of settlement did not amount to the kind of "change of circumstances" the rule contemplates.

Drawing on leading authority, including commentary on Camper v Pothecary and Retailers v Visa, the court reaffirmed that the change must be significant and objective, not merely a party's revised assessment of the case or personal preferences. Examples include new evidence altering the factual matrix or shift in legal outlook following a new judicial decision, not simply a decision to value aspects of the claim differently after reflection.

The court also rejected arguments based on the Claimant's vulnerability. Despite submissions about fatigue and difficulty processing negotiations, the judge found no evidence that the Claimant's capacity to instruct his lawyers was compromised. They also found no evidence that the procedural safeguards of the Part 36 regime had been overwhelmed. The court stressed that Part 36's self-contained nature limits judicial direction to avoid uncertainty in settlement negotiations.  

The Chinda decision reinforces several key principles when handling Part 36 offers, namely:

• Permission to withdraw or amend a Part 36 offer before the relevant period expires is the exception, not the rule. The threshold test of a genuine "change of circumstances" means courts will not permit withdrawal simply because the offeror regrets the offer or prefers a different structure.
• Once accepted before the relevant period expires, a Part 36 offer is generally binding unless the court is persuaded that exceptional circumstances justify withdrawal.
• The overriding objective and factors such as vulnerability are unlikely, by themselves, to satisfy the change of circumstances test, unless they are accompanied by more concrete changes in evidence or legal position.
• Part 36's structure reflects a balance between negotiation flexibility and the need for certainty and enforceability of offers.

Chinda serves as a useful reminder that a mere change of mind is insufficient; the court must be satisfied that there has been a meaningful change in circumstances that justifies departing from the committed settlement position.

Effectiveness of Fixed Costs

The Ministry of Justice has launched an interim review of the extended Fixed Recoverable Costs regime.

The Ministry of Justice, together with the Civil Procedure Rule Committee, has opened a consultation seeking feedback on the extended Fixed Recoverable Costs (FRC) regime that was introduced on 1 October 2023. The review, termed an interim implementation stocktake, invites stakeholders to submit evidence on how the new cost-recovery framework is operating in practice, with responses requested by early January 2026.

The extended FRC regime represents one of the most significant changes to civil litigation costs in recent years. Previously, fixed recoverable costs applied in limited contexts such as low-value personal injury claims. Under the reforms implemented in late 2023, FRC now broadly applies across the fast track (claims up to £25,000) and the intermediate track (most civil cases valued between £25,000 and £100,000), subject to a limited number of exceptions.

The purpose of the interim implementation stocktake is to identify and examine any emerging issues associated with the intermediate track FRC regime. Key areas under review include:

• The operation and practical effect of the four case complexity bands established for both fast and intermediate tracks.
• The interaction between fixed recoverable costs and settlement initiatives, including the use and impact of Part 36 offers.
• Treatment of expected claims, such as certain housing and clinical negligence matters that fall outside the FRC framework.
• The incidence and relevance of disbursements and how they affect overall recoverable costs.
• The influence of unreasonable conduct by parties on costs awards within the fixed regime.

The interim stocktake complements another ongoing consultation examining small-track whiplash claim procedures. Together, these parallel reviews highlight the government's continuing focus on litigation costs and access to justice.

The results of the interim stocktake will help inform a fuller post-implementation review, expected to take place in late 2026, which will explore the wider effects of the extended FRC regime and potential need for future reform. We look forward to further comment on the potential upcoming reforms in the future bulletins.

Jayden James Smithstone (A child by his Litigation Friend, Kirsty Louise Norris) v Tranmoor Primary School [2026] EWCA Civ 13

This recent Court of Appeal decision addressed the issue of whether liability only offers are effective to engage CPR 36.

The Claimant issued a personal injury claim against the Defendant and made a Part 36 offer to settle liability on a 90/10 basis. This offer was rejected by the Defendant, and the parties subsequently agreed settlement of the claim at £2,650. DDJ Khan approved the sum of £2,650 on the basis that it was all to go to the Claimant, and awarded the Claimant fixed costs, sealing an order in these terms on 21 December 2020.

The Claimant appealed against the decision to award fixed costs on the grounds that it had not been awarded any of the consequences provided for under CPR 36.17, in circumstances where the order dated 21 December 2020 was at least as advantageous to the Claimant as its 90/10 liability offer.

On the first appeal, HHJ Baddeley considered that he was bound by the case of Mundy v TUI UK Ltd [2023] EWHC 385 (Ch) and rejected the appeal. In Mundy v Tui, the Court stated that there was a fundamental incompatibility of 90/10 offers with CPR 36.17, as a 90/10 offer was not an offer to settle the claim on quantifiable financial terms, and could represent a "unilaterally imposed insurance policy" enabling claimants to recoup a substantial premium despite failing to beat a money offer to settle their claim.

On appeal to the Court of Appeal, Lord Justice Bean overruled Mundy v TUI as a matter of principle. Applying Huck v Robson [2002] EWCA Civ 398 and Broadhurst v Tan [2016] EWCA Civ 94, Bean LJ stated that the Court ought to encourage settlement of specific issues in the interests of saving costs and court time. Bean LJ considered that the Claimant's 90/10 liability offer should be treated as a genuine offer to compromise.

However, as liability had never been determined, the appeal was dismissed on the basis that the outcome of the case could not be said to be a finding more advantageous to the Claimant than a 90/10 apportionment of liability. Had the Defendant admitted liability, or been found to be 100% liable at trial, the Court of Appeal considered that there could have been a case for awarding the Claimant, pursuant to CPR 36.17, costs relating to the issue of liability from the date of the Claimant's 90/10 offer.

Comments and Analysis:

Parties will no longer be able to rely on the judgment in Mundy v Tui to argue that liability only offers do not engage CPR 36, and it may be the case that defendants see an increase in liability only offers from Claimants who seek to capitalise on the decision in Smithstone v Tranmoor. If there is a finding of liability, CPR 36.17 may be engaged, so parties should be mindful of the potential costs consequences when admitting liability or progressing a claim to trial after a liability only offer has been made. The Court of Appeal also made clear that an order approving settlement of damages to a minor met the threshold to be a "judgment" for the purposes of CPR 36.17.  When settling a claim, parties must ensure that their settlement terms do not enable their opponents to argue that there is a "judgment" which is more advantageous than their liability only offer.