DG Resources Limited v The Commissioners for HMRC

MR JUSTICE MARCUS SMITH: Introduction

1. The Appellant, DG Resources Ltd (“DG Resources”) owes the Respondent (“HMRC”) some £1,104,015.14, which debt is the subject of a petition presented by HMRC on 11 December 2024 (the “Petition”).

2. Various matters arising out of the Petition came before Chief ICC Judge Briggs (the “Judge”) on 31 July 2025, who handed down a reserved judgment (the “Judgment”) on 27 August 2025. In the Judgment: i) The Judge found that DG Resources did not dispute the Petition Debt (Judgment/[95(a)] and did not advance any genuine or substantial cross-claim (Judgment/[97]). ii) The Judge found that the Petition had been validly served on DG Resources for the reasons given at Judgment/[64] to [88]. iii) The Judge considered the position if (contrary to his primary finding) the Petition had not been properly served. On the assumption of irregular or invalid service, the Judge declined to strike out the Petition for the reasons given at Judgment/[89] to [95].

3. An order consequential on the Judgment was made on 19 November 2025 (the “Order”).

4. By an Appellant’s notice (amended pursuant to my order for reasons that are immaterial), DG Resources sought permission to appeal the orders consequential upon the Judge’s conclusions at [2(ii)] and [2(iii)] above. Permission to appeal was not sought in respect of the Judge’s conclusion at [2(i)] above. The appeal is thus a technical one, where DG Resources is seeking to stave off the evil day of winding-up. Nevertheless, on what became an application for permission to appeal which I heard on 2 December 2025, I (i) granted permission to appeal on all of the grounds pleaded in the grounds of appeal (the “Grounds of Appeal”), (ii) stayed pending further order the hearing of the Petition (then listed for hearing on 3 December 2025) and (iii) expedited the appeal to be heard (with a time estimate of one day) on 19 December 2025. Expedition was ordered because HMRC should not, absent a swift determination against them on the related questions of service and validity of the Petition, be kept from winding up DG Resources for any longer than necessary.

5. Given that service of petitions to wind-up is an everyday occurrence, the matters raised in the Grounds of Appeal are of general importance and need (in the wider public interest) to be put on a clear basis in any event.

6. This judgment thus deals with two related questions: i) Does service of a petition at the “default address” stipulated by the Registered Office Address (Rectification of Register) Regulations 2024 (the “Regulations”) constitute proper service of a petition? This question involves consideration of the Regulations and of the rules regarding the service of petitions. So far as possible, these questions must be resolved in the abstract, for the rules are intended to apply generally. Although there is a very specific history between DG Resources and HMRC, it seems to me that such specific, factual, questions are best avoided, so far as this is possible. ii) If service of the Petition in this case was irregular, what are the consequences? Assuming the first question posed is answered in favour of DG Resources (ie service of the Petition was not regular), the question arises as to what the consequences of this are. Here the individual circumstances are relevant and will have to be taken into account, as in any case where the court operates a structured discretion.

7. I turn to the first question: the rules regarding service of winding-up petitions. Rules of service for winding-up petitions The Registered Office Address (Rectification of Register) Regulations 2024 (the “2024 Regulations”)

8. The 2024 Regulations make provision for the address of a company’s registered office to be changed (either on application: Reg 4; or because the registrar is under a duty: Reg 7) to a default address. Reg 3 provides: Nomination of default address (1) The registrar must nominate one or more addresses to be default addresses for the purposes of these Regulations (which need not be appropriate addresses). (2) The registrar may only nominate an address under paragraph (1) if the address is – (a) one at which the registrar carries out functions, or (b) a PO box.

9. Generally speaking, re-registration can only occur on notice (see Regs 6 and 8), but there is provision to do so without notice (Reg 10). An appeal of the registrar’s decision is provided for: Reg 13 (appeal by the company) and Reg 14 (appeal by the applicant).

10. Reading as a whole, it is clear from the 2024 Regulations that they are intended as a form of “stick” to ensure that companies with “defective” addresses (ie those liable to be changed to the default address under the 2024 Regulations): i) Reg 17 provides: Where a company has had its registered office address changed to a default address in accordance with these Regulations, the company may not display its name, or keep, display, or make available for inspection, its registers, indexes or other documents at the default address. The default address is thus singularly useless for carrying on (legitimate) business. ii) Regulation 20 provides for a duty on a company that has had its address changed to a default address to give notice under section 87 of the Companies Act 2006 (which makes provision for a change of address of a company’s registered office) before the end of “the compliance period” (defined in Reg 20(3)-(4): Reg 20(2)). iii) A failure to comply with Reg 20 results in an offence being committed by the company and every officer of the company that is in default: Reg 21. The company may also be struck off if there is a failure to comply with Reg 20: Reg 22.

11. The 2024 Regulations have as their objective not the continuous migration of companies to a default address, but an objective of achieving (as a general policy) relocation from an unsatisfactory registered office to a satisfactory registered office, via a temporary default address. The default address is, thus, a more-or-less unsatisfactory stop-gap. This is demonstrated by two further provisions in the Regulations: i) Reg 18 provides: Collection and destruction of documents (1) If the address of a company’s registered office is changed to a default address (including from one default address to another default address) the registrar must facilitate the collection by the company of any documents delivered to the company at that address. (2) But the registrar may destroy any document delivered at that address if – (a) it is not collected within the period of 6 months beginning with the day on which it is delivered, or (b) the company is struck off. ii) Reg 19 provides: Where a company has changed the address of its registered office from a default address to a new address under section 87 of the Act , the registrar is under no duty to forward any documents delivered to the company at the default address to the new address. The position of DG Resources

12. It was common ground that on the date the Petition was served, DG Resources’ registered office was the default address. The details as to how this occurred are controversial but immaterial. Certainly, it was DG Resources’ position that the shift to a default address was itself subject to question. I proceed on the basis, but without deciding, that the default address in this case was the only address at which DG Resources could properly be served. Whatever the factual controversies between the parties, no-one before me contended otherwise. In this way, I can properly side-step the history of the matter. Section 1139 of the Companies Act 2006

13. Section 1139(1) provides: A document may be served on a company registered under this Act by leaving it at, or sending it by post to, the company’s registered office.

14. This represents the starting point and – in most cases – the end point as to where documents should be served on a company. However, this is a general rule and (as with any general rule) may be subject to displacement in special cases. The point made by DG Resources is that the service of a petition does represent a “special case”. Originating processes

15. In Robertson v. Google LLC , [2025] EWCA Civ 1262 , the importance of due commencement of proceedings in all litigation or contentious processes was stressed. At [15], Coulson LJ stated: The importance of the commencement of proceedings, by way of a properly served claim form and particulars of claim, has been emphasised in a number of the authorities. In Barton v. Wright Hassall LLP , [2018] UKSC 12 , Lord Sumption at [8] drew a distinction between procedural rules and duties, on the one hand, and the provisions in Part 6, on the other. He described Part 6 as the “conditions on which the court will take cognisance of the matter at all”. The full passage reads as follows: [8] The Civil Procedure Rules contain a number of provisions empowering the court to waive compliance with procedural conditions or the ordinary consequences of non-compliance. The most significant is to be found in CPR 3.9, which confers a power to relieve a litigant from any “sanctions” imposed for failure to comply with a rule, practice direction or court order. These powers are conferred in wholly general terms, although there is a substantial body of case law on the manner in which they should be exercised…The short point to be made about them is that there is a disciplinary factor in the decision whether to impose or relieve from sanctions for non-compliance with rules or orders of the court, which has become increasingly significant in recent years with the growing pressure of business in the courts. CPR Rule 6.15 is rather different. It is directed specifically to the rules governing service of a Claim Form. They give rise to special considerations which do not necessarily apply to other formal documentsor to other rules or orders of the court. The main difference is that the disciplinary factor is less important. The rules governing service of a Claim Form do not impose duties, in the sense in which, say, the rules governing the time for the service of evidence, impose a duty. They are simply conditions on which the court will take cognisance of the matter at all. Although the court may dispense with service altogether or make interlocutory orders before it has happened if necessary, as a general rule service of originating process is the act by which the defendant is subjected to the court’s jurisdiction.

16. It is of course right – particularly given Art 6 ECHR – that originating processes be sufficiently clear and robust so that the “target” of the litigation (the person against whom a claim, however framed, is sought to be brought) will have the process drawn to their attention so that they may fairly participate in that process, if they so choose.

17. Absent a “special regime” that specifically governs the service of winding-up petitions, the regime that I have described under section 1139(1) of the Companies Act 2006 is Art 6 ECHR compliant, even in the case where the company’s registered office is a default address. The 2024 Regulations contain enough safeguards to enable a company to obtain documents that have been served in this way. Doubtless, it is less than ideal: but then it is in the company’s hands to re-register at a different office. That, as I have described, is the policy objective of the 2024 Regulations.

18. Thus, the force of DG Resources’ point on service depends upon (i) the existence of a specific regime for the service of petitions, which (ii) operates not to supplement but to displace section 1139(1) as a proper mode for the service of a petition. The provisions in the Insolvency Rules

19. Schedule 4 to the Insolvency Rules 2016 provides for the service of documents, including petitions. Para 1(1) provides that “[t]his Schedule sets out the requirements for service where a document is required to be served”. This strongly suggests an exclusive regime, ie unless service is done as provided for, it is not valid service.

20. Para 2 deals specifically with service of winding-up petitions, and provides: (1) A winding-up petition must be served at a company’s registered office by handing it to a person at that address who – (a) at the time of service acknowledges being a director, other officer or employee of the company; (b) is, to the best of the knowledge and belief of the person serving the petition, a director, other officer or employee of the company; or (c) acknowledges being authorised to accept service of documents on the company’s behalf. (2) However, if there is no-one of the kind mentioned in sub-paragraph (1) at the registered office, the petition may be served by depositing it at or about the registered office in such a way that it is likely to come to the notice of a person attending the office. (3) Sub-paragraph (4) applies if – (a) for any reason it is not practicable to serve a petition at a company’s registered office; (b) the company has no registered office; or (c) the company is an unregistered company. (4) Where this paragraph applies, the petition may be served – (a) by leaving it at the company’s last known principal place of business in England and Wales in such a way that it is likely to come to the attention of a person attending there; or (b) on the secretary or a director, manager or principal officer of the company, wherever that person may be found.

21. I am in no doubt that para 2 constitutes a complete code for the service of a petition, and that service outside this code is not proper service. In particular, service by way of section 1139(1) alone is not sufficient service. I reach this conclusion for the following reasons: i) The word “must” in para 2(1), together with the general words in para 1(1), make clear that this is an exclusive code. ii) The code in para 2 is hierarchical, in that the method of service laid down in para 2(1) is to be used (“must” again) unless impossible, in which case the para 2(2) method is permissible (“…if there is no one of the kind mentioned in sub-paragraph (1) at the registered office…”). The tertiary method of service (in para 2(4)) may only be used if the conditions in para 2(3) are satisfied. iii) The tertiary method of service is obviously a “catch all”, intended to deal with all cases of service, where service cannot be effected pursuant to paras 2(1) and 2(2). I shall refer to these provisions as the “Petition Service Code”.

22. It follows that to permit service of a petition pursuant to section 1139(1) when the provisions of the Petition Service Code have not thereby been complied with would be to circumvent a carefully thought out code, which is intended to apply exclusively in the case of petitions. Given what has been said in Robertson v. Google LLP , it is clear that these rules are important as they are the means of engaging a court process (albeit a very specific form of process).

23. I therefore disagree with the [86] of the Judgment. I do not consider that there can have been regular service of the Petition pursuant to section 1139(1) alone. Service of the Petition must be made pursuant to para 2. To the extent it matters, neither DG Resources nor HMRC sought to defend the Judgment on this basis. Developments since the Judgment

24. Before the Judge, HMRC relied upon the evidence of a Mr Kyle Foster, a process server, who gave a witness statement in the following terms: [1] On the 20 December 2023 at 15:-2 hours, I attended at PO Box 4385, 12399995, Companies House Default Address, Cardiff, CF14 8LH, this being the Registered Office of the above-named Company. [2] I served the above-named Company with the sealed Petition by handing it to Hannah, the Receptionist, who acknowledged to me that they were authorised to accept service of documents on behalf of the Company.

25. The accuracy of this account was challenged by DG Resources, both in an affidavit of their own and in questions directed to HMRC and their process server. This resulted in a witness statement filed on behalf of HMRC dated 12 December 2024 by Ms Victoria Davies-Short of High Court Enforcement Group Limited, the parent company of Excel Civil Enforcement Limited, the company that employed Mr Foster. I refer to the affidavit of Mr Wayne Reynolds, adduced on behalf of DG Resources. For the reasons given in this Judgment, it is unnecessary to refer further to this affidavit.

26. Ms Davies-Short – having looked into the question of service by Mr Foster – acknowledges that Mr Foster (I am quite prepared to accept innocently) got things very wrong when attempting to serve the Petition: [6] Having read the affidavit of Wayne Reynolds, I reviewed our internal case notes and the statement of Kyle Foster. Mr Foster stated that he had attended at PO Box 4385, 1299995, Companies House Default Address, Cardiff, CF14 8LH. The photograph uploaded was not of Companies House but a post office on Heol Llanishen Fach, Cardiff. Mr Foster had also uploaded a report to say he had attended a post office in Llanishen, Cardiff. Ie the affidavit adduced by DG Resources: see fn 1. [7] I believe that “Hannah” referred to in Mr Foster’s statement is a postal worker, and that the petition was handed to her and she then arranged service of the petition by post. [8] As the default address at Companies House is not an address at which a director, other officer or employee of a company can be served, it was believed that service had been effected by depositing it at a local Post Office. [9] Kyle Foster, the process server, and Lucy Maffeis, who prepared the statement on Kyle’s behalf, are no longer employed by Excel Civil Enforcement Limited.

27. Clearly this presents an entirely different picture to the one painted before the Judge. HMRC conceded that they could no longer contend that the Petition had been properly served, a concession that DG Resources was naturally willing to accept. However, HMRC requested – despite their concession – that I rule substantively on the question of service of the Petition. In my judgment, that was an appropriate request to make, and I accede to it. It seems to me that legal certainty requires this, given the publication of the Judgment and this appeal out of it. Furthermore, it seems to me that that accords proper respect to the extremely careful and – given it was produced over vacation – speedily produced Judgment of the Judge, as well as the quality of the parties’ submissions before me. Was there regular service pursuant to the Insolvency Rules?

28. I shall proceed to consider three different scenarios: i) “Case 1”, where a petitioning creditor (purportedly) serves a petition on a company with a default address by depositing the petition in the designated drop-box situated at Companies House’s offices in Crown Way, Cardiff, CF14 3UZ. ii) “Case 2”, where a petitioning creditor (purportedly) serves a petition on a company by foisting it upon a person at Companies House premises, who may or may not (I shall consider either alternative) state that they have authority to accept service. iii) “Case 3”, where a petitioning creditor (purportedly) serves a petition on a third party, having nothing to do with Companies House, but who undertakes to post the petition to the default address. Case 3 is the present case, as described by Ms Davies-Short; Case 2 is the case that was before the Judge, but which has now been superseded by the evidence of Ms Davies-Short. Case 1 does not arise, but must be considered in order to understand how the Petition Service Code works.

29. I turn to the hierarchy set out in the Petition Service Code. I begin (obviously) with the primary method of service (set out in para 2(1)). This involves service “at a company’s registered office by handing it to a person at that address who” meets the criteria set out at paras 2(1)(a), (b) or (c). It is clear that neither Case 1 nor Case 3 meet even this entry requirement.

30. Case 2 does involve handing the petition to a person, and it is therefore necessary to consider the three subsidiary limbs of para 2(1): i) Para 2(1)(a). Case 2 does not involve the handing of a petition to “a person at that address who…at the time of service acknowledges being a director, other officer or employee of the company”. Given the terms and operation of the 2024 Regulations, it is not possible for a director, other officer or employee of the company to be present at the default address and so extremely unlikely that anyone would acknowledge themselves as such. ii) Para 2(1)(b). Nor does Case 2 fall within the second limb. The existence of a default address precludes any reasonable belief that the person to whom the petition is handed is a “director, other officer or employee of the company ”. Again, I refer to the general terms and operation of the 2024 Regulations, and in particular to Reg 17 of the Regulations. iii) Para 2(1)(c). A more promising candidate is the third limb, which provides for regular service to a person who “acknowledges being authorised to accept service of documents on the company’s behalf”. In my judgment it would be very difficult to achieve service under this limb. The 2024 Regulations make clear (i) that the registrar of Companies House assumes no responsibilities in regard to the company and (ii) the company is not permitted a presence at the default address. In these circumstances, even if a person at Companies House was foolish enough to say that they were authorised to accept service of documents on the company’s behalf, the person effecting service could have no reasonable belief in the truth of that statement. The whole point of the default address regime under the 2024 Regulations is to absolve the registrar of responsibility regarding documents delivered; and to prevent the company actually being present at the default address. iv) I therefore conclude that, in the case of service of a petition at the default address, the party seeking to serve the petition must proceed to the secondary method of service contained in para 2(2) of the Petition Service Code. Under para 2(2) a petition may be served “by depositing it at or about the registered office in such a way that it is likely to come to the notice of a person attending the office”. A key purpose of the 2024 Regulations is to render the default address a company’s registered office, but to ensure (i) the company knows this and (ii) has the opportunity to pick up that which is sent there. It seems to me that this process – particularly when read in the light of the 2024 Regulations – does comply with para 2(2). Therefore, if the process in para 2(2) were to be followed, Case 1 would result in regular and proper service of the petition, but Cases 2 and 3 would not.

31. Case 1 is the appropriate – and probably, under present arrangements, the only appropriate – way of properly serving a petition. Helpfully, it is also an easy and convenient way of effecting service.

32. Since it is clear that in this instance, Case 1 was not followed, I agree that HMRC’s concession regarding irregular service of the Petition is well-made, and that the appeal from the Judgment must, to this extent, be allowed.

33. The tertiary process of service contained in para 2(4) does not, therefore, arise, whether in this case or other similar cases. The process followed under Case 1 ought in all foreseeable cases to be sufficient to effect proper service of a petition is cases such as this. Consequences if the Petition was irregularly served

34. I have found that the Petition was not served on DG Resources at all, although DG Resources has now been aware of the Petition for some months. There is a dispute about the circumstances in which DG Resources came to know of the Petition, but that is an arid dispute into which I am not going to enter. It is sufficient to note that: i) There has never been regular service of the Petition; but that ii) DG Resources has known of the Petition for some time and has no reasonable grounds for disputing the debt nor advancing an arguable cross-claim.

35. In the Judgment, the Judge concluded that if – contrary to his conclusion on service (which was that the Petition had been regularly served) – the Petition had not been properly served, then he would not be minded to set it aside for the reasons he gave in [95] of the Judgment.

36. HMRC contended that the Judge’s exercise of his discretion ought to stand. I accept that an appellate court ought to be slow to set aside the exercise of discretion by the judge below. I also accept that the Judge’s exercise of discretion, in this case, appears reasonable and obviously defensible: see [95] of the Judgment. However, there has been a very significant change since the Judgment, in that HMRC can no longer contend that the Petition was validly served and, quite properly, they do not seek to do so. Although the Judge was considering the striking out of the Petition on the basis that the Petition had (contrary to his view) been irregularly served, the fact is he considered the question against background of regular service, and appears to have attached weight to this (notwithstanding his assumption of non-service). Thus, [95] of the Judgment reads: In this case, I have found the Petition was properly served in accordance with the Rules. That is not the only distinction …

37. Given the quite seismic change in circumstance since the Judgment, I cannot properly not set aside the Judge’s exercise of his discretion – but I stress that this is entirely because HMRC, unintentionally, misled the Judge.

38. Re Signland Limited , [1982] 2 All ER 609 stands for the proposition that where there has been seriously irregular service, a petition should be set aside. It was contended that when this decision was read alongside the decision in Robertson v. Google LLC described above, the default in cases like this should be to set aside or strike down a petition, unless the petitioner (here: HMRC) could show good cause for the petition to stand. At its highest, DG Resources contended that the Petition was, for this reason, a “nullity”, and that I had no discretion at all. That is not what Robertson v. Google LLC says, and is inconsistent with Re Signland . I reject the contention that an irregularly served petition is, inevitably, a nullity. I also reject the notion of “prima facie” invalidity.

39. It seems to me that the most that can be said is that where there is an irregularity in the service of an originating process like a petition: i) The court ought to attach particular weight to the irregularity, for the reasons articulated in Robertson v. Google LLC . ii) The court ought also to scrutinise the explanation for the irregularity and the conduct of the parties. iii) But the court ought also to be sensitive to other relevant matters.

40. In this case, the factors articulated by the Judge at [95(a)] to [95(h)] of the Judgment weigh strongly in favour of not striking out the Petition. However, there are two factors – not present before the Judge – which weigh strongly against this. First, the irregularity in service is a particularly serious one. Secondly, before the Judge, HMRC put forward a defective contention that service had been regular, when it was not, which resulted in a judgment and orders in HMRC’s favour, which judgment has now (rightly) been set aside in circumstances where the orders made below will have to be re-visited.

41. The fact is that through the negligence of its agents, HMRC has put forward to the court below a materially false case, and obtained judgment in its favour on the back of this. Such conduct, even when unintentional, must have consequences. In this case, it seems to me that this is a case where the Petition should be struck out or “removed from the file”, and HMRC be required to begin the process again. I reach this conclusion fully conscious that DG Resources has no substantive case against the Petition. That weighs heavily, but where there is so serious a breach of due process it seems to me that this factor is insufficient to save the Petition, which must be struck out or removed from the file. Disposition

42. For the reasons given in this Judgment, I allow the appeal.