New Year Reflections: Why procedural precision matters in litigation
A new year often prompts us to turn over a new leaf, tie up loose ends and ensure our homes are in order. For litigators, this is also an opportune moment to reflect on whether our procedural “house” is equally well maintained, including across current and prospective litigation processes. Recent Court of Appeal decisions serve as a timely reminder that overlooking procedural details can have serious – and often costly – consequences.
A cautionary tale on service out of the jurisdiction
In Robertson v Google LLC[2025] EWCA Civ 1262, the claimant – Colin Robertson, a YouTuber known as “Millennial Woes” – failed to effect valid service of his claim form on the US-based defendant within the applicable six months. He had not filed Form N510 with the court or provided it with the claim form (a requirement for service out of the jurisdiction) and only did so later with an application for relief from sanctions. The Court of Appeal held that the requirement for Form N510 is mandatory. Civil Procedure Rule (CPR) 6.34 did not contemplate retrospective validation of invalid or defective service and the wording strongly suggested that the court’s permission to serve without filing N510 has to be obtained before valid service can be effected. CPR 7.6 governed extensions of time for serving a claim form, and it was “illegitimate” to use CPR 3.9 (relief from sanctions) to bypass it. This judgment highlights how compliance with mandatory service requirements is critical.
Missed service deadlines can spell serious consequences
Not long after, the Court of Appeal revisited the question of invalidly served claim forms inBellway Homes Ltd v Occupiers of Samuel Garside House [2025] EWCA Civ 1347. The claimant missed the 4pm service deadline in a court order. Attempts to serve by fax and DX failed: the fax did not transmit, and DX collected documents from the solicitor’s reception after office hours. The court found that the claimants did not show that, as a matter of fact, they took the necessary steps for service by 4pm. Even if that were wrong, the claimants had not complied with CPR 7.5 as a matter of law as each of the CPR 7.5 methods of service constitutes a “positive” and “irrevocable” act. Leaving documents at reception for later collection by a DX provider did not qualify. Applying the principles from the authorities, the court found the case could not be distinguished from Robertson v Google and so the failure to validly serve the claim form, where no extension had been granted, meant the defendant was not the subject of the court’s jurisdiction. Therefore, the defendant was not required to take any steps in proceedings to file an acknowledgment of service, or apply under CPR 11 to challenge the court’s jurisdiction. Another reminder that it is essential to keep a close eye on the procedural rules as a case progresses.
What this means for in-house teams
With commercial litigation, the focus can often be on the bigger picture, but these judgments remind us that cases can be won or lost on procedure. For in-house lawyers, practical things to consider are:
- Plan ahead for service: consider diarising key dates and confirming with external counsel the intended method of service in advance (where possible).
- Don’t assume you will get extra time: procedural rules on service are strict and extensions must be sought under the relevant rules.
- Educate your internal teams: brief your internal business clients on the importance of timely instructions for litigation steps and the potential risks with late instructions.
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