Robertson v Google LLC: CPR 6.34 permission is prospective; CPR 7.6(3) is the exclusive route for late service out of the jurisdiction; no relief from sanctions and no AoS duty absent valid service

Introduction

This Court of Appeal decision addresses a recurring and practically significant problem in cross-border litigation: what can a claimant do when a claim form has been delivered abroad within time but service is invalid because Form N510 (the jurisdictional statement required by CPR 6.34 when serving out under CPR 6.33) was not filed and served?

The respondent, Mr Robertson, a YouTube content provider, sued Google LLC alleging discrimination under section 29 of the Equality Act 2010 and breach of contract arising out of demonetisation, “shadow banning” and termination of his channel. He issued a claim form on 7 October 2021 which had to be served on Google in the USA by 7 April 2022 (CPR 7.5(2)). The claim form was delivered to Google’s HQ on 5 April 2022, but Form N510 was neither filed with the court nor served with the claim form. After Google identified the omission on 19 April 2022, Mr Robertson filed N510 on 22 April 2022 and applied for “relief from sanctions” and, in the alternative, for an extension.

Deputy District Judge Grout accepted that service on 5 April 2022 was invalid because of the missing N510, but (in reliance on authorities shown to him) treated CPR 3.9 (relief from sanctions) as the applicable test and granted relief, deeming the claim form served on 5 April 2022. He also rejected Google’s separate territorial jurisdiction challenge to parts of the claim. Costs of the relief application were awarded against Mr Robertson. Google appealed contending CPR 7.6(3) (the strict extension-of-time regime for serving a claim form) applied and could not be bypassed by CPR 3.9. Mr Robertson cross-appealed the costs order.

Summary of the Judgment

The Court of Appeal (Dingemans LJ and Underhill LJ agreeing) allowed Google’s appeal and dismissed the cross-appeal. The court held that:

CPR 7.6 governs extensions of time to serve a claim form, including service out of the jurisdiction (paras 38–45, 52). Where the application is made after expiry of time, CPR 7.6(3) sets stringent preconditions which Mr Robertson accepted he could not satisfy.
CPR 6.34(2)(b) does not confer any power to retrospectively validate service or to “back-date” service; permission under CPR 6.34 is prospective only (paras 32–35). There is no concept of “suspended service” pending late filing of N510 (paras 27, 31).
The general relief from sanctions regime in CPR 3.9 does not apply to cure failures in the valid commencement of proceedings by service of originating process. The specific “service sub-code” (CPR 6 and 7.6) cannot be bypassed by CPR 3.9/3.10 (paras 41–45, 48–50), applying Vinos and Ideal Shopping; reinforced by Good Law.
A defendant faced with invalid service is not obliged to file an Acknowledgment of Service (AoS) or make a CPR 11 application. Parts 9–11 presuppose valid service; where service is invalid and the defendant opposes the claimant’s application to rectify, no AoS or CPR 11 application is required (paras 70–75). The late attempt to argue otherwise was refused permission and held unarguable (paras 54–59, 77).
The costs order below was within the judge’s discretion and stands (paras 78–84).

Consequently, Mr Robertson’s proceedings were a nullity absent a valid extension under CPR 7.6(3); there was no power to deem earlier invalid steps as service and CPR 3.9 was inapplicable.

Analysis

Precedents and authorities considered

Barton v Wright Hassall LLP [2018] UKSC 12 (para 15): Lord Sumption characterised service of a claim form as the “conditions on which the court will take cognisance of the matter at all,” distinguishing service from other procedural duties. This underpins the court’s insistence that failures in service of originating process are of a different order than ordinary procedural defaults.
R (Good Law Project) v SSHSC [2022] EWCA Civ 355 (paras 16, 46–49): Carr LJ stressed the special status of service of the claim form as the act subjecting a defendant to the court’s jurisdiction, and that CPR 7.6 (not general case management powers) governs extensions. She also emphasised that reliance on defective service is not “opportunism” and that the relief-from-sanctions jurisprudence (Denton, Mitchell, Hysaj) did not address failures in service of originating process. The Court of Appeal here leverages Good Law to reinforce that CPR 3.9 has no role before valid commencement.
National Navigation (The Wadi Sudr) [2009] EWHC 196 (Comm) (para 11): Gloster J highlighted the importance of the predecessor to N510, requiring transparent, reasoned assertions of jurisdiction to facilitate prompt challenges. This rebuts any suggestion that N510 is trivial; the Court of Appeal rejects attempts to downplay its significance (paras 28–30).
Vinos v Marks & Spencer PLC [2001] 3 All ER 784 (para 41): A cornerstone authority that the specific scheme governing service and extensions (CPR 7.6(3)) cannot be overridden by general powers such as CPR 3.10 or the overriding objective. Applied squarely to prevent using CPR 3.9/3.10 to do what CPR 7.6(3) forbids.
Ideal Shopping Direct Ltd v Mastercard Inc [2022] EWCA Civ 14 (paras 42–43): Reinforces Vinos. Even where the claimant argues the step was taken “defectively,” the court cannot deploy CPR 3.10 to bypass the specific provisions in the “service sub-code” (CPR 6.15, 6.16, 7.6). The Court of Appeal analogises to show the same prohibition on using general powers to sidestep CPR 7.6(3) here.
Hoddinott v Persimmon Homes [2007] EWCA Civ 1203 (paras 65–67): Authority that a defendant who files an AoS but does not make a CPR 11 application in time is treated as accepting jurisdiction. Crucially, this applies where an AoS has been filed after valid service. The Court limits Hoddinott to its facts.
Pitalia v NHS England [2023] EWCA Civ 657 (para 67): Clarifies Hoddinott’s reach and confirms that service errors are a category of their own; courts will not apply identical procedural rigour to defendants as to claimants when service is defective.
Hand Held Products v Zebra Technologies [2022] EWHC 640 (Ch) (para 68): Nugee LJ (obiter) questioned whether a defendant must use Part 11 where its position is that there has been no effective service at all, noting the oddity of “acknowledging service” in that scenario. This analysis is adopted.
Dubai Financial Group LLC v National Private Air Transport Services Co [2016] EWCA Civ 71 (para 75): Confirms there is no obligation on a defendant to take steps in response to invalid or unauthorised service; time for AoS does not run where there has been no valid service.
Shiblaq v Sadikoglu [2004] EWHC 1890 (Comm) (para 76): Characterised as “bizarre” the notion that a defendant must use CPR 11 to challenge service that never validly occurred.

Legal reasoning: why CPR 7.6(3) and not CPR 3.9 governs

Identify the default and the remedy sought (paras 24–31, 36–40): The default was failure to effect valid service within six months. The remedy needed was an extension of time to serve the claim form. That situates the case squarely within CPR 7.6.
CPR 6.34(2)(b) is prospective, not retrospective (paras 32–35): The text provides that a claim form “may only be served” if the notice (N510) is filed, or “if the court gives permission.” By contrast to CPR 6.15(2) (which expressly authorises retrospective validation), CPR 6.34(2)(b) contains no language permitting back-dating or validating “steps already taken.” Permission must be obtained before service without N510; it cannot retroactively cure invalid service or extend time.
The “service sub-code” is self-contained and strict (paras 41–45, 48–50): Applying Vinos and Ideal Shopping, general powers (CPR 3.9/3.10/3.1(2)(a)) cannot be used to override or circumvent the specific regime governing the service of originating process and the time-limits for service. Good Law confirms that relief-from-sanctions case law does not apply to the commencement act of service.
Parity and coherence (para 44): If CPR 3.9 could be used for out-of-jurisdiction service omissions, claimants serving out would be in a better position than those serving within the jurisdiction (for whom CPR 7.6(3) indisputably applies). The court rejects that asymmetry.
Rejection of “suspension” theory (paras 27, 31): There is no doctrinal basis or textual footing for the idea that defective service can be “suspended” pending later compliance with N510 and then deemed effective as at the original date. Such a mechanism would sow confusion and undermine CPR 7.6(3).
Form N510 is mandatory and substantive (paras 29–30): The word “must” in CPR 6.34(1) makes filing and serving N510 compulsory when proceeding under CPR 6.33. Given its statement of reasonable belief and statement of truth, N510 is a substantive jurisdictional safeguard, not a box-ticking exercise.
Consequences for proceedings (paras 50, 77): Where a claim form has not been validly served within time and no extension can be granted under CPR 7.6(3), the proceedings are a nullity; there is no procedural platform upon which CPR 3.9 can operate.

The “new point” on AoS/CPR 11: why it failed

Two days before the appeal, Mr Robertson sought to argue that Google’s failure to file an AoS and/or make a CPR 11 application meant that it had accepted jurisdiction or that its service challenge was a nullity. The Court of Appeal refused permission to amend to add this late point and, in any event, found it unarguable:

Temporal and procedural fairness: The point was raised too late, with potential prejudice to Google (paras 56–59).
Substance: Parts 9–11 presuppose valid service; there is no duty to file AoS or make a CPR 11 application in response to invalid service (paras 70–74). Hoddinott is limited to cases where an AoS was filed after valid service but no CPR 11 application followed (para 74). The approach is consistent with Pitalia, Hand Held, Dubai Financial Group and Shiblaq (paras 68, 75–76).

Costs cross-appeal

The cross-appeal complaining that the judge failed to carve out costs associated with Google’s unsuccessful territorial jurisdiction challenge failed. The appellate court emphasised the breadth of discretion in costs (SCT Finance v Bolton) and concluded the order was open to the judge, especially where the need for the contested arguments arose from Mr Robertson’s own failure to effect valid service (paras 78–84). While the appellate judge observed that he might have allowed a modest reduction (20%) personally, that is not the test on appeal (para 84).

Impact and significance

This judgment crystallises and extends key principles governing service of originating process out of the jurisdiction, and will shape front-line litigation practice:

Prospective-only permission under CPR 6.34: Parties serving out under CPR 6.33 must either file and serve N510 with the claim form (CPR 6.34(1)), or obtain permission beforehand to serve without N510 (CPR 6.34(2)(b)). There is no power to validate after the event.
CPR 7.6(3) is the exclusive route for after-the-event extensions: If service is not validly effected within six months (CPR 7.5(2)), a retrospective extension can only be granted if the claimant proves (a) all reasonable steps were taken to comply but could not, and (b) promptness in applying (CPR 7.6(3)). Relief from sanctions is inapplicable.
No “service suspension” or back-dating: The court rejects any notion that invalid service can be held in abeyance pending later compliance with formalities.
Defendants’ procedural posture: Defendants confronted with invalid service need not file an AoS or make a CPR 11 application to preserve their position; their time limits do not run until valid service occurs. This reduces procedural skirmishing and cost where the claimant’s service is plainly defective.
Parity between in- and out-of-jurisdiction service: The decision prevents the self-certification pathway in CPR 6.33 from being used to sidestep the strict extension regime that applies to service within the jurisdiction, promoting uniformity and predictability.
Costs consequences: Applicants who require indulgence to rectify service missteps should expect to pay the costs of those applications, with limited scope to isolate discrete, unsuccessful arguments run by the respondent.

Complex concepts simplified

Service of the claim form: The formal act by which a defendant is brought within the court’s jurisdiction. It is not just another procedural step; it is what starts the clock and engages the court’s power over the defendant.
Form N510 (CPR 6.34): A mandatory notice stating the grounds that entitle a claimant to serve out of the jurisdiction without permission (for example, a jurisdiction clause), to be filed with and served alongside the claim form. It is verified by a statement of truth and underpins the legitimacy of service out.
CPR 6.33 vs 6.34: CPR 6.33 allows “self-certification” service out without permission in specified categories (e.g., jurisdiction clause). CPR 6.34 imposes the N510 filing/serving requirement where 6.33 is used, or alternatively requires prior court permission to serve without the N510.
Prospective vs retrospective powers: Some rules (e.g., CPR 6.15(2)) allow the court to retrospectively validate steps already taken. CPR 6.34 does not; its permission is forward-looking only. Retrospective validation of service out of time must fit within the specific rules (e.g., CPR 7.6(3)) or not at all.
CPR 7.6(3) test (retrospective extension): After time has expired, an extension can be granted only if the claimant took all reasonable steps to comply yet could not, and acted promptly once default was realised. It is deliberately strict.
Relief from sanctions (CPR 3.9): A broad jurisdiction to forgive non-compliance with rules or orders—but not applicable to failures in serving originating process. The specific service rules take precedence.
Acknowledgment of Service (AoS) and CPR 11: These mechanisms govern a defendant’s response once validly served (AoS) and the process for contesting jurisdiction (CPR 11). They are not prerequisites where service was never valid.

Practical takeaways for litigators

When serving out under CPR 6.33, always file N510 with the claim form and serve a copy with the claim form (CPR 6.34(1)). Treat it as critical, not cosmetic.
If you realise a defect before the six-month period expires, apply within time for an extension under CPR 7.6(2). After expiry, you must meet the stringent test in CPR 7.6(3); CPR 3.9 will not assist.
Do not rely on creative constructs such as “suspended service” or attempts to deem service effective through CPR 3.9. They are incompatible with the service “sub-code.”
Consider CPR 6.15 (alternative service) only where its strict criteria are met; it expressly allows retrospective validation but is concerned with method/place of service, not compliance with N510.
Defendants: If service is invalid, you are not required to acknowledge service or issue a CPR 11 application to preserve your jurisdictional objection. Make your position clear in correspondence and oppose any application to validate/extend as appropriate.
Expect costs exposure when seeking indulgence to rectify service errors. Arguments collateral to the relief application may not materially reduce that exposure on assessment.

Conclusion

Robertson v Google LLC establishes, at appellate level, a clear rule of practice for service out of the jurisdiction in self-certification cases:

CPR 6.34 permission is prospective only; it cannot retrospectively validate service or “back-date” it.
Where service was not validly effected within six months, CPR 7.6(3) is the exclusive gateway for any retrospective extension—and the threshold is intentionally demanding.
Relief from sanctions under CPR 3.9 has no role to play before proceedings have been validly commenced by service of originating process.
Defendants need not file AoS or issue CPR 11 applications to challenge invalid service; Parts 9–11 presuppose valid service.

The decision harmonises the treatment of service inside and outside the jurisdiction, reinforces the integrity of the service “sub-code,” and rejects doctrines that would erode the certainty and discipline surrounding the commencement of proceedings. It will be a touchstone authority for future cases involving defective service out of the jurisdiction and the limits of general case management and sanctions relief powers.

Panel: Lord Justice Dingemans (Senior President of Tribunals) and Lord Justice Underhill agreed.