CA-2025-001079 & CA-2025-002078 - [2025] EWCA Civ 1262

The wording of the judge’s order followed the application made on behalf of Mr Robertson. As I have indicated, that application sought to avoid the reality of the situation here: that a claim form was not validly served until, at the earliest, 22 April (when the N510 was filed). There was therefore no valid service of the claim form within the specified 6 month period. That is the nature of the default, in respect of which Mr Robertson requires the court’s assistance. On the face of it, the remedy that the court can provide (subject to the CPR) would be an extension of time of 15 days in which to serve that claim form.

Google’s appeal asserts that the judge was right to say at [56] that, on the face of it, the CPR indicated that r.7.6 was the relevant rule in respect of this default, and wrong to allow himself to be persuaded that the authorities suggested something different. I propose to deal with that issue primarily by reference to the CPR itself. None of the authorities identified by the judge are binding on this court. So it is appropriate at least to start from first principles.

I am in no doubt that, on a proper reading of the CPR, r.7.6 applies to this situation. There are a number of reasons for that.

First, the starting point must be an analysis of the nature of the default on the part of Mr Robertson and the remedy he required from the court. I have set that out above. Rule 6.34(2)(b) does not allow a claim form to be deemed to have been validly served on a date when it was not validly served. It is not retrospective. It is not concerned with extending time for service. On the contrary, it is r.7.6 that is concerned with extending time for service. There is nothing in r.6.34(2)(b) which suggests that it cuts across or undermines the regime envisaged by r.7.6.

Secondly, it cannot be said – as was originally suggested – that r.7.6 is somehow inapplicable, either because it related only to service within the jurisdiction or, because r.7.5(2) referred back to Section IV of Part 6, that somehow meant that r.6.34(2)(b) somehow took precedence over r.7.6. Rule 7.5(2) expressly deals with the situation where the claim form is to be served out of the jurisdiction. That is where the 6 month period comes from. Rule 7.6 applies to any extension of the period for compliance with rule 7.5: in other words, to any extension of the 6 months. It is not therefore limited to claims within the jurisdiction: it is intended to apply to both sub-rules in r.7.5. Rule 6.34(2)(b) is of no application. As the judge correctly said at [56(a)], “on the face of it, therefore, it is difficult to see why CPR 7.6, as a whole, would not apply to applications for an extension of time to serve a claim form out of the jurisdiction.”

Thirdly, it is illegitimate to use the general provision in r.3.9 in an attempt to get round the particular requirements of r.7.6(3). That is a rule of interpretation: the specific must always override the general. It is also a principle established in the authorities: see Vinos v Marks & Spencer PLC [2001] 3 All ER 784 (CA). There, the claimants served the claim form 9 days after the expiry of the 4 month period for service under r.7.5. An application for an extension of time under r.7.6(3) failed, and the Court of Appeal held that the general power under r.3.10 was not available. May LJ said at [20]:

“The meaning of rule 7.6(3) is plain. The court has power to extend the time for serving the claim form after the period for its service has run out only if the stipulated conditions are fulfilled. That means that the court does not have power to do so otherwise. The discretionary power in the rules to extend time periods - rule 3.1(2)(a) - does not apply because of the introductory words. The general words of rule 3.10 cannot extend to enable the court to do what rule 7.6(3) specifically forbids, nor to extend time when the specific provision of the rules which enables extensions of time specifically does not extend to making this extension of time. What Mr Vinos in substance needs is an extension of time-calling it correcting an error does not change its substance. Interpretation to achieve the overriding objective does not enable the court to say that provisions which are quite plain mean what they do not mean, nor that the plain meaning should be ignored. It would be erroneous to say that, because Mr Vinos’s case is a deserving case, the rules must be interpreted to accommodate his particular case. The first question for this court is, not whether Mr Vinos should have a discretionary extension of time, but whether there is power under the CPR to extend the period for service of a claim form if the application is made after the period has run out and the conditions of rule 7.6(3) do not apply. The merits of Mr Vinos’s particular case are not relevant to that question. Rule 3.10 concerns correcting errors which the parties have made, but it does not by itself contribute to the interpretation of other explicit rules.”

In Ideal Shopping Direct Limited v Mastercard Inc [2022] EWCA Civ 14, [2022 1 WLR 1541, the claimant sought to distinguish Vinos by saying that it was a case where the claimant had failed to take a relevant procedural step in time, whereas the failure in Ideal Shopping was the taking of the relevant step timeously but defectively (the service of unsealed claim forms). That distinction was rejected by the court. Sir Julian Flaux C said:

“145.

The second ground of appeal concerns the scope of rule 3.10 and whether it is available in principle in this case. It is important to analyse correctly what is the error of procedure which the appellants are asking the Court to remedy. They are in substance asking the Court to treat the service of unsealed amended claim forms as good service and to dispense with the requirement for any further service. Those are matters to which rules 6.15 and 6.16 are applicable and yet the appellants' applications under those provisions were refused. It is also important to note that none of the appellants' applications included an application for an extension of time under rule 7.6(3) for service of the sealed amended claim forms. Yet, in seeking to remedy the defect in service, the appellants are, in a very real sense, seeking to achieve the same result as would a successful application under rule 7.6(3).

146.

It follows that the appellants are asking the Court to do the very thing which Vinos and the line of authority which follows it does not permit. The general provision in rule 3.10 cannot be used to override a specific provision, here rule 6.15 or rule 6.16. The appellants could not satisfy the "good reason" or "exceptional circumstances" criteria under those two rules and they are not permitted to use rule 3.10 to bypass the requirements of those specific provisions. Likewise, since the appellants could not have satisfied condition (b) of rule 7.6(3), as they could not have shown that they had taken all reasonable steps to comply with rule 7.5 or that they had been unable to do so, they cannot be permitted to use rule 3.10 to bypass the requirements of rule 7.6(3)…

150.

Thus in the present case it is no answer for Ms Smith QC to rely upon the distinction she seeks to draw and to categorise this as a case where the appellants did take a procedural step (purported service of the amended claim forms) but did so defectively (serving unsealed amended claim forms). The remedying of that error under rule 3.10 would still involve bypassing rules 6.15 or 6.16 or 7.6(3) and is thus not permissible. The provisions on service of originating process in rules such as 6.15, 6.16 and 7.6 form part of what Peter Gibson LJ described in Vinos at [27] as a "specific sub-code" dealing with service and cannot be overridden or bypassed by the general power in rule 3.10.”

Although both the general rule and the specific rules as to service raised in Ideal Shopping were different to those in issue here, that makes no difference at all to the applicable principle. There, as here, the claimants could not have satisfied condition (b) of r.7.6(3), as they could not have shown that they had taken all reasonable steps to comply with r.7.5. Thus they were not permitted to use rule 3.10 to bypass the requirements of r.7.6(3). In my view, that conclusion applies with equal force to the attempt here to rely on r.3.9, and to avoid r.7.6(3).

Fourthly, if the judge’s conclusion in the present case was right, it would mean that those seeking to extend time for service outside the jurisdiction would be in a better position than those seeking to extend time for service within the jurisdiction (where r.7.6(3) indisputably applies). They would be able to use (and potentially abuse) the self-certification process under r.6.33 to bypass r.7.6(3) altogether. That was correctly described by the judge as a “rather peculiar and difficult to justify distinction”.

For these reasons, therefore, it seems to me clear that, simply as a matter of the CPR, this situation fell foursquare within r.7.6. Turning to the authorities, I conclude that that view is reinforced, not undermined.

In Good Law this court was concerned with the delay in serving a claim form in the judicial review context. There too was a battle between, on the one hand, the specific rule in r.7.6, and on the other, r.3.1(2)(a), another general power, concerned with extending time for compliance with any rule. This court resolved that issue in favour of r.7.6. Importantly, in her judgment Carr LJ made it plain that the relief from sanctions regime did not apply to service of the claim form. At [41] she said:

“41.

As for the importance of valid service, service of a claim form can be distinguished from other procedural steps. It performs a special function: it is the act by which the defendant is subjected to the court’s jurisdiction. This quality is reflected in the terms of CPR r 7.6, with its very strict requirements for any retrospective extension of time. Equally, reliance on non-compliant service is not one of the instances of opportunism deprecated by the courts (see for example Woodward v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 (Woodward) at [48]). The need for particular care in effecting valid service, particularly when there are tight time limits and/or a claimant is operating towards the end of any relevant limitation period, is self-evident.”

In addition, she went on to say at [79]:

“79.

However and fundamentally, the court in Denton v White was not addressing relief from sanctions (or extensions of time) in the context of service of originating process. As set out above, applications for extensions of time for service of Part 7 and Part 8 claims do not fall under CPR 3.1(2)(a) (but under CPR 7.6). There is nothing to suggest that the court in Denton v White (or Hysaj) had in mind failures in service of originating process and applications for extensions of time for service of any claim of any sort, including judicial review claims. The three cases the subject of the appeals in Denton v White involved failures to comply with procedural failures during the life of the claims in question, that is to say after service of the claim forms. The breaches were variously late service of witness statements, failure to comply with an "unless" order, late service of a costs budget and late reporting of the outcome of settlement negotiations. The earlier case of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 WLR 795 ("Mitchell") also arose out of the late filing of a costs budget. The cases following Mitchell and considered in Denton v White (at [13] to [19]) arose out of late service of particulars of claim, late disclosure, late service of witness statements and late tendering of security for costs. Hysaj involved late service of a notice of appeal.”

The result in Good Law was that r.7.6 applied to the service of a claim form by analogy, even though it was not the result of an express provision in the rules. Here, not only does r.7.6 apply expressly to the service of this claim form, for the reasons that I have already explained, but r.3.9 cannot apply in any event, because the relief from sanctions regime does not operate before the claim has been validly commenced.

Accordingly, I take the view that Good Law provides yet further support for Google’s appeal. Even though Good Law was not cited to him, it again demonstrates that the judge’s instinct, that r.7.6 applied in these circumstances, was the correct one.

In some ways, this brings us right back to where I started, which was the importance of identifying the nature of Mr Robertson’s default and the relief he needed from the court. Because he had not validly served the claim form within time, the proceedings, on the face of it, were a nullity. He needed to obtain an extension of time for service of the claim form, otherwise the proceedings remained a nullity. Issues relating to relief from sanctions in those circumstances are simply irrelevant: if time for service is not extended under the relevant rule (here, r.7.6(3)), there are no proceedings in which relief from sanctions can be granted.

For completeness, I should refer briefly to the three first instance cases to which the judge was referred, namely DSG International Sourcing Limited v Universal Media Corporation [2022] EWHC 1116 (Comm); BDI-Bioenergy Internation AG v Argent Energy Limited (unreported, 19 December 2017); and Athena Fund v Secretariat of State for the Holy See [2021] EWHC 3166 (Comm); [2022] 1 WLR 1389. For four reasons, it is unnecessary to analyse them in any detail. First, they are first instance decisions and therefore not binding on this court (unlike Good Law). Secondly, they were all decided before Good Law. Thirdly, it does not appear that, in any of those cases, the claim form was served out of time. In this way, the extension provisions in r.7.6 were not in issue. Fourthly, and in consequence, it means that the arguments which I have been considering in this judgment simply did not arise in those cases.

For all those reasons, therefore, I conclude that r.7.6 applied to this case.