High Court issues key judgment on failure to serve parties on time

HHJ Karen Walden-Smith sitting as a judge of the High Court said the case against the Secretary of State and developers Piers and Susan Brunton raised “an important and novel point with respect to the impact of a failure to serve in time parties to the statutory review who have indicated that they do not wish to take part in the statutory review process”.

Arun sought permission for a statutory review proceedings under section 288 of the Town and Country Planning Act 1990 after an inspector allowed the Bruntons’ appeal against Arun’s rejection of their application to demolish some buildings and erect seven homes. The council was concerned about density and drainage.

But Arun failed to serve the Bruntons in time as it mistakenly sent the relevant papers to a planning consultant who had previously worked for them. By the time the error was corrected the matter was out of time.

HHJ Walden-Smith said there was no case law on service and time limits where an active party has been properly served and an inactive one has not.

The deadline for filing and serving the statutory review was 3 October 2025, six weeks from the date of the inspector’s decision.

Arun DC served the Secretary of State that day and purported to serve on the Brutons by sending the bundle to consultant James Cross of Cross Town Planning.

Mr Cook told Arun: “I can confirm that I have not passed the documents onto the interested party [the Bruntons],”

He added: “I do not act and am not instructed to represent them on any legal matters including acting as a correspondence address.

“Secondly it is the responsibility of [Arun] to ensure sufficient service in any judicial review claim and not the former planning consultant who acted for the interested party on planning matters separately.”

Arun said Mr Cross did not inform them until this email of 3 November 2025 that he was not authorised to accept service. The council served the claim and associated documents by hand on the Bruntons on 4 November 2025, when it also applied for an extension of time for the service of the claim.

Mr and Mrs Brunton said they did not wish to take an “active role in defending the claim but reserve their position should the court request further representations.”

HHJ Walden-Smith said Arun DC must show it took all reasonable steps to serve the claim form in time and acted promptly in seeking an extension of time.

But service on the Bruntons took place 32 days later than it should have even though the council knew their contact details and had nothing to show Mr Cross had authority to accept service.

“In those circumstances, it cannot be found that Arun DC took all reasonable steps to serve upon Mr and Mrs Brunton in time, that is by 3 October,” the judge said.

“In the circumstances, CPR 7.6(3)(b) has not been made out and the court’s discretion to extend time for compliance cannot be exercised in favour of Arun DC as the court may make such an order ‘only if – the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so’”. She added that a period of 32 days for service was not “prompt”.

HHJ Walden-Smith explained: “The failure to serve on Mr and Mrs Brunton in time, and without an extension of time, means that the court is without jurisdiction to determine the claim against Mr and Mrs Brunton.”

The Secretary of State contended that the failure to serve on the Bruntons meant the claim against him could not proceed even though it was properly served.

Arun argued this should not vitiate its claim against the Secretary of State.

HHJ Walden-Smith said: “Failure to serve the proceedings means that the jurisdiction of the court has not been invoked. The fact that a party who has not been served makes a declaration that they do not intend to play an active role in the proceedings, does not impact upon whether there is jurisdiction.”

She said Arun “may feel aggrieved” and the Secretary of State was “effectively obtaining a ‘windfall' in the sense that the consequence of the non-service on the Bruntons was that the court lacks jurisdiction against him and the claim must be struck out”.

For completeness HHJ Walden-Smith went through four grounds that would have been tabled by Arun and concluded all were unarguable.