New Year Reflections: Why procedural precision matters in litigation
13 January 2026
News
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.
To learn more about the scope of Forsters’ Commercial Dispute Resolution expertise and how we can help you, click here.
Instant messages, long term consequences – Insights from DAZN v Coupang
28 November 2025
News
In DAZN Limited (“DAZN”) v Coupang Corp. (“Coupang”), the Court of Appeal has delivered a timely reminder that under English law, informal communications (such as emails and WhatsApp messages), can be sufficient to form a legally binding contract – even where there is reference to the subsequent preparation of a formal written agreement.
While the case is highly fact specific, the Court of Appeal’s decision provides helpful guidance for businesses (particularly those involved in contract negotiation) and a warning that informal communications can have legal consequences.
Background
FIFA (the sole owner of the broadcasting rights to the 2025 World Cup) licensed its rights to the DAZN Group (of which DAZN is a part). DAZN was permitted to sublicense its rights in different territories. Between January and March 2025, DAZN entered into discussions with Coupang (a major e-commerce and streaming platform in South Korea) regarding the sublicensing of the 2025 World Cup broadcasting rights. Those discussions were conducted primarily via WhatsApp (including voice notes), phone calls and later emails.
On 27 February 2025, Coupang emailed DAZN with a “proposal” to acquire a co-exclusive license to the 2025 World Cup (live and video-on-demand) broadcasting rights in South Korea for US$1.7 million. On 3 March 2025, DAZN sent an email to Coupang stating: “we will accept Coupang Play’s offer for the FIFA Club World Cup 2025 we will start contract drafting and hope to share the draft for your agreement soon”. Two WhatsApp messages were also sent by DAZN to Coupang on 3 March 2025 which similarly confirmed that the proposal in the 27 February 2025 email had been accepted. It was not disputed that the parties had anticipated signing a formal contract at a later date.
The following day, DAZN informed Coupang that it had received a higher offer from another bidder. That rival bid was later increased. DAZN considered that it was entitled to accept that higher bid on the basis that it had only reached a non-binding agreement in principle with Coupang. Coupang disagreed and initiated legal proceedings.
The High Court agreed with Coupang, finding that a binding contract had been concluded. DAZN appealed.
Appeal
The Court of Appeal dismissed DAZN’s appeal in its entirety, finding it clear that “the parties had reached an agreement by which they intended to be immediately and legally bound by the exchange of the emails in question”. Key factors included:
All of the essential terms had been negotiated and agreed in advance via WhatsApp.
It was common practice in the industry for deals to be negotiated orally or informally over WhatsApp and then formalised via email.
There were numerous communications that showed that those negotiating believed that the deal had been concluded.
Though not decisive, the parties did not qualify their discussions as subject to contract and DAZN had done so in other draft heads of terms.
With the World Cup approaching, the deal was time sensitive, but the parties showed no urgency in drafting or signing the formal contract after the 3 March email, which indicated that they did not consider it necessary.
Comment
While the judgment is highly fact specific, it nonetheless serves as an important reminder of the limited formalities required under English law to create a binding contract. Businesses, particularly those operating in fast-paced or informal settings, should therefore consider:
Stating whether negotiations are being conducted “subject to contract” (though this will not necessarily be decisive).
Ensuring that adequate internal policies are in place regarding the channels by which negotiations are conducted and what internal approvals are required before a deal is accepted. Clear lines of communication and approvals processes will be particularly important for businesses with multiple deal teams negotiating often fast-moving transactions, simultaneously with various counterparties.
Ensuring that those negotiating understand when they may be bound by an agreement.
Keeping contemporaneous records of any oral negotiations.
Involving external advisors promptly where issues arise – particularly where there is time-sensitivity.
The line between informal dialogue and enforceable agreement is where many disputes arise. DAZN serves as a reminder that informality in negotiation does not avoid legal consequence and, as such, the benefits of speed and convenience in instant messaging must be measured against the risks for businesses when things go wrong.
Lifecycle of a Business – Dispute resolution: What are a company’s options?
6 November 2024
News
Setting up and running your own business is an amazing achievement. It requires vision, creativity, motivation and stamina. On occasion, it can even bring you fame, riches and fortune. But it can also result in reams of paperwork and cause sleepless nights. And as someone once said to me about children “It doesn’t get easier, it just changes”, so the same can be said for your business throughout its lifecycle. From setting up to exit, it will force you to consider issues that you might not previously have known anything about and it will need you to make many decisions, sometimes very quickly. What it certainly is not is mundane.
With this in mind, the corporate team at Forsters, together with some of our specialist colleagues, has written a series of articles about the various issues and some of the key points that it may help you to know about at each stage of a business’s life. Not all of these will be relevant to you or your business endeavours, but we hope that you will find at least some of these guides interesting and useful, whether you just have the glimmer of an idea, are a start-up, a well-established enterprise or are considering your exit options. Do feel free to drop us a line or pick up the phone if you would like to discuss any of the issues raised further.
We’ve already discussed various topics, including funding, employment and commercial contracts, but it’s now time to discuss when things go wrong…
Dispute resolution: What are a company’s options?
While disputes are something commercial parties naturally seek to avoid if at all possible, one will arise at some point in the lifecycle of most businesses. When a dispute does arise, there are a variety of legal mechanisms available to seek to resolve matters. These include adversarial proceedings in which a binding decision is made by a court or tribunal, as well as “alternative dispute resolution” procedures based on party to party negotiation.
Adversarial proceedings: arbitration vs. litigation
If adversarial proceedings are to be pursued, the two main options are litigation and arbitration. In litigation, disputes are determined by a country’s national Courts. In contrast, when parties choose to arbitrate, they agree to submit their dispute to a privately appointed tribunal for determination, usually pursuant to an arbitration clause in their contract.
Aside from this difference, the procedures in litigation and arbitration are often similar. The parties will typically serve statements of case, give disclosure of relevant documents and exchange factual or expert witness evidence, with the proceedings culminating in a trial, sometimes known as an evidentiary hearing.
Whether arbitration or litigation is preferable is context-sensitive. However, litigation may be the better option in the following scenarios:
Precedent: Arbitrators’ decisions on points of law do not bind other Courts or tribunals (not least because they are usually confidential – see below). Litigation will therefore be preferable where it is important to obtain a decision that will bind other parties in future (e.g., a case regarding the meaning of a clause in a supplier’s standard terms and conditions).
Multi-party disputes: Arbitration requires all parties to have agreed to submit the dispute to arbitration. It is therefore often unsuitable for cases involving multiple parties, not all of whom have signed up to the same arbitration clause or otherwise agreed to arbitrate. That said, complex transactions increasingly involve all parties signing up to the same arbitration clause with a view to achieving a “one stop shop” for dispute resolution. Further, the rules of the leading arbitral institutions increasingly provide mechanisms for related disputes to be consolidated. Multi-party arbitration is therefore becoming more common.
Cost: It is sometimes said that arbitration is cheaper than litigation. While this may be true in some contexts, as a general rule, hard-fought commercial arbitration will often end up being more expensive than litigation, given the need to pay the tribunal’s costs (which can be extensive) on top of the other costs of the proceedings.
On the other hand, arbitration may be preferable to litigation in some contexts. For example:
Enforcement: Most countries are parties to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, known as the New York Convention. This makes enforcing arbitral awards more straightforward than enforcing Court judgments in many jurisdictions, particularly emerging markets.
Confidentiality: Unlike Court proceedings, arbitral proceedings are conducted in private, with all submissions and evidence remaining confidential. This is likely to be desirable, for example, in cases involving sensitive commercial information or trade secrets.
Neutrality: While parties from the same jurisdiction will be content for their disputes to be resolved by the national Courts of that jurisdiction, parties from different jurisdictions may well wish to opt for arbitration to provide a neutral forum.
Alternatives to adversarial proceedings: “without prejudice” negotiations including mediation
As an alternative to adversarial proceedings, parties can pursue a variety of negotiation-based forms of “alternative dispute resolution” or “ADR”.
At its simplest, ADR involves negotiations between the parties or their lawyers either in person or via correspondence on a “without prejudice” basis. Such negotiations cannot be referred to before a Court or tribunal, and this encourages parties to take a pragmatic, “cards on the table” approach to resolving matters.
If the parties consider that a more structured approach would be beneficial, a further option is mediation. Here a third party mediator is engaged to facilitate the without prejudice negotiations between the parties, usually at an in person meeting. Unlike a Court or tribunal, a mediator will not make any decision which binds the parties. However, they are able to provide an impartial view on the strengths and weaknesses of their cases, and this can be helpful in encouraging more realistic settlement discussions.
Whichever option is pursued, ADR has the potential to resolve disputes more quickly and cheaply than adversarial proceedings, allowing the parties to return to their day to day business activities and, in some cases, to maintain their business relationship. In circumstances where the outcome of adversarial proceedings is often unpredictable, a settlement via ADR also has the advantage of crystallising the parties’ positions, with neither party being entirely vindicated, but neither losing outright.
Given these benefits and the burden placed on the state by running the Court system, the English Courts are increasingly keen to encourage parties to explore ADR as an alternative to Court proceedings. In Churchill v Merthyr Tydfil, a landmark Court of Appeal decision in 2023, the Court ruled (contrary to previous authority) that the Courts have the power to stay claims in order to compel ADR in certain circumstances. From May 2024 onwards, certain low value claims (those worth less than £10,000) are also required to be mediated before they can be determined in Court, and it seems likely that compulsory mediation will become increasingly common in future.
Disclaimer
This note reflects the law as at 10 October 2024. The circumstances of each case vary and this note should not be relied upon in place of specific legal advice.
