Colin Robertson v Google LLC

Where a claim form for service outside the jurisdiction is not validly served within six months because the claimant omitted the mandatory Form N510, the remedy is an extension under rule 7.6 of the Civil Procedure Rules 1998. Rule 6.34(2)(b) operates prospectively. It cannot suspend defective service or retrospectively validate it.

The general relief-from-sanctions power in rule 3.9 cannot bypass the specific conditions governing retrospective extensions for service. Until originating process is validly served, there are no effective proceedings in which relief from sanctions can be granted. A defendant faced with invalid service need not acknowledge service. Nor must it make a separate rule 11 application when it is already opposing the claimant’s application to cure that invalidity.

The claimant issued proceedings alleging unlawful discrimination contrary to section 29 of the Equality Act 2010 and, alternatively, breach of contract. The claim form had to be served on the defendant in the United States within six months. Although delivered to the defendant’s headquarters shortly before the deadline, it was not accompanied by the mandatory Form N510 and had not been validly served.

Deputy District Judge Grout held that rule 7.6(3) of the Civil Procedure Rules 1998 would ordinarily govern an extension, but treated rule 3.9 as applicable and granted relief from sanctions. He deemed the claim form served on the date of delivery. The defendant appealed. The claimant cross-appealed against the order requiring him to pay the application costs and advanced a late argument based on the defendant’s failure to acknowledge service or apply under rule 11.

The principal issue was whether rule 6.34(2)(b), together with rule 3.9, could retrospectively validate service, or whether the claimant had to satisfy rule 7.6(3).

1. Appeal allowed and cross-appeal dismissed. Rule 6.34(1) of the Civil Procedure Rules 1998 makes filing and serving Form N510 mandatory where a claimant relies on entitlement to serve outside the jurisdiction without permission. The form records the jurisdictional basis and is supported by a statement of truth. It is not an immaterial formality.

2. Rule 6.34(2)(b) is prospective. It permits the court to authorise service without prior filing of Form N510, but does not permit invalid service to be suspended or retrospectively converted into valid service. Its language contrasts with rule 6.15(2), which expressly authorises the court to treat steps already taken as good service. Retrospective use of rule 6.34(2)(b) would also undermine the specific extension regime in rule 7.6(3).

3. The claim form had not been validly served during the six-month period prescribed by rule 7.5(2). The substantive remedy required was therefore an extension under rule 7.6. That rule applies to service both within and outside the jurisdiction. A general procedural power, including rule 3.9 or rule 3.10, cannot be used to bypass the specific requirements governing originating process. Vinos v Marks & Spencer PLC and Ideal Shopping Direct Ltd v Mastercard Inc supported that conclusion.

4. The relief-from-sanctions regime does not operate before a claim has been validly commenced. Without an extension under rule 7.6(3), the proceedings remained a nullity and there were no proceedings in which relief could be granted. The claimant conceded that he could not satisfy rule 7.6(3).

5. The claimant’s proposed new ground was refused as late, potentially prejudicial and unarguable. Rules 9 to 11 presuppose valid service. A defendant is not obliged to acknowledge service where the claim form has not been validly served. Nor was a separate rule 11 application required where the defendant had consistently opposed the claimant’s own application to cure invalid service. Hoddinott v Persimmon Homes concerned an acknowledgment actually filed and did not govern these circumstances.

6. The costs cross-appeal failed. The invalid service made the claimant liable for the costs of the ineffective proceedings. In any event, the first-instance costs order fell within the judge’s broad discretion. The unsuccessful territorial-jurisdiction argument arose only because of the claimant’s failure to effect valid service.

1. Court of Appeal (Civil Division): The defendant’s appeal was allowed and the claimant’s costs cross-appeal was dismissed. The proceedings remained a nullity because the claimant could not satisfy rule 7.6(3) of the Civil Procedure Rules 1998.

2. County Court at Central London: Deputy District Judge Grout granted relief from sanctions under rule 3.9, deemed the claim form served on 5 April 2022 and ordered the claimant to pay the costs of the application. The court had found that delivery without Form N510 had not constituted valid service.