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

On 22 April 2022, Mr Robertson sought “relief from sanctions for not filing Form N510 before serving the claim outside the jurisdiction to render the service effective under CPR 6.34(2)(b). Alternatively, if necessary, to extend time for service so service can be re-effectuated with Form N510 enclosed.” The hearing of that application was delayed for various reasons. Each party blames the other for the delay, and it is not a fruitful task to enter into those debates here.

The hearing of the application eventually took place before the judge at County Court at Central London on 17 May 2023. His written judgment and order were dated 1 June 2023. At [49] the judge found that, because of the failure to file/serve Form N510, “the claim form had been received by [Google] on 5 April 2022 but it had not been served.” The judge said that it was clear that the claim form could only be served once Form N510 had been filed or if the court had given permission. “Neither of those things had occurred as 5 April 2022 and so there had been no service.” That is an important finding. It confirms that valid service was not effected by Mr Robertson in the 6 month period. There is no appeal against that finding, which seems to me to be the inevitable consequence of the CPR.

As the judge made plain, the dispute between the parties was whether r.7.6(3) applied or whether, when considering permission under r.6.34(2)(b), the court should simply have regard to the relief from sanctions regime identified in r.3.9 and encapsulated in the well-known authority of Denton v TH WhiteLimited [2014] EWCA Civ 906; [2014] 1 WLR 3926.

At [56], the judge said that, prior to having had regard to the various authorities concerning Form N510, he was inclined to consider that the right answer was by reference to r.7.6(3). That mattered because, as the judge had already noted at [34], Mr Boch frankly accepted that if r.7.6(3) was engaged, then Mr Robertson was in difficulty (a concession repeated on appeal).

However, Mr Boch persuaded the judge that r.7.6(3) did not apply at all and that the test for permission under r.6.34(2)(b) should be applied solely by reference to the test for relief from sanctions under r.3.9. Consequently, that was the test that the judge applied. He granted relief from sanctions, and therefore he deemed service to have taken place on 5 April 2022. The precise form of his order, which reflected Mr Robertson’s application, was in the following terms:

“1.

The Claimant/Applicant's application for relief from sanctions in respect of his failure to file and serve the Form N510 is granted and the Claim Form and Particulars of Claim therefore are deemed to have been served on 5 April 2022.”

There was also a dispute between the parties as to whether Mr Robertson in fact required the permission of the court to serve out of the jurisdiction in relation to the Equality Act claims, because it was said that those were not connected to the contract claims. The judge considered that argument but found in favour of Mr Robertson. That was the separate jurisdictional challenge to which I have already referred, and it is not pursued on appeal by Google.

The judge granted Google permission to appeal on the principal ground, namely that he had been wrong not to apply r.7.6(3). Mr Roberston obtained permission to appeal against the costs order. HHJ Richard Roberts transferred all matters to this court and the transfer was accepted by Andrews LJ on 17 October 2024.