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

This brings us back to r.6.34. On its face, this is a simple rule which, under paragraph (1), stresses the importance of serving Form N510 with the claim form, and which emphasises in paragraph (2), that the claim form can only be served once the notice has been filed or if the court gives permission for service. It says nothing about suspending invalid service. It says nothing about granting retrospective permission, or subsequently validating earlier defective service.

In my view, the words of paragraph (2)(b) do not contemplate retrospective validation of invalid or defective service. The relevant part provides that, as an alternative to filing Form N510, the claim form may only be served if the court gives permission. That strongly suggests that the court’s permission to serve without filing the N510 has to be obtained before valid service can be effected. It is prospective. It does not say that permission can be granted to back-date service or extend time for service. To that extent, therefore, r.6.34(2)(b) is the opposite of r.6.15(2) (set out at paragraph 8 above) which expressly permits the court to “order that steps already taken… is good service”. Rule 6.15(2) therefore expressly envisages retrospectivity. Generally, where a particular part of the CPR permits the court to validate something after the event, it will expressly say so. Rule 6.34(2)(b) does not.

Furthermore, the possible grant of retrospective permission under r.6.34(2)(b) would, as already indicated, cut across the regime in r.7.6(3) for after-the-event extensions of time in which to serve the claim form. In these particular circumstances, it would render that rule wholly redundant. No-one would need to worry about the stringent regime in r.7.6(3) if they could rely on a general test for ‘permission’ after the event under r.6.34(2)(b), coupled with an application for relief from sanctions under r.3.9. I would have expected r.6.34(2)(b) to say in terms that r.7.6(2) and (3) were disapplied in such circumstances, if that was what was intended. It does not do so.

In essence, Mr Boch was arguing that, if the court gave permission under r.6.34(2)(b), the claim form would be treated as having been validly served on the very date that the judge had found that valid service had not been effected. But that is not what the rule says, and in my view, there is nothing in the words of the rule that could justify such an interpretation.