The Dekagram: 27th October 2025

In this week’s Dekagram Kerry Nicholson considers whether there’s any way around a failure to serve an N510 form on time when issuing a claim, and Robbie Parkin examines a quite extraordinary case which looks set to rumble on through the courts for years to come.

Court of Appeal confirms (again) there is no way around the strict rules on service

The Court of Appeal in Robertson v Google LLC [2025] EWCA Civ 1262 has once again confirmed that creative interpretations of the CPR will not save a Claimant who fails to comply with the rules of service in time.

Background

Mr Robertson, a controversial Youtuber, sought to sue Google LLC, a company based in the USA, pursuant to a contract through which he provided Youtube with videos. That contract was terminated as a consequence of Google’s hate speech policies.

Mr Robertson issued a claim form, which had to be served on Google in the USA within six months. The claim form was delivered to Google’s headquarters two days before the expiry of the six-month time window. Crucially, the mandatory form N510 was neither filed with the court nor provided with the claim form. Shortly thereafter, Google pointed out that omission and said that as a consequence, proper service had not been effected. In response, Mr Robertson filed the N510 with the court together with an application for relief from sanctions.

At first instance, the judge was persuaded that CPR 7.6(3) (extending time for service of a claim form) did not apply, and that the relevant test was that for relief from sanctions under CPR 3.9. He granted relief from sanctions. Google appealed that decision, and Mr Robertson cross-appealed the usual costs order made that the party applying for relief pay the costs of the application.

Relevant Legal Framework

The Court of Appeal summarised the relevant legal framework from paragraph 7. Essentially, Mr Robertson’s position was that he did not require the court’s permission to serve out of the jurisdiction and so would have been serving under CPR 6.33. CPR 6.43 states that if serving under 6.33, a Claimant must file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction (form N510) and serve a copy of that notice with the claim form. It goes on to state that if a claimant fails to file the N510, the claim form may only be served once the claimant files the N510, or if the court gives permission.

CPR 7.5 provides for the time limits for serving claim forms, and CPR 7.6 is concerned with extensions of time for serving a claim form:

“(1) The claimant may apply for an order extending the period for compliance with rule 7.5.

(2)   The general rule is that an application to extend the time for compliance with rule 7.5 must be made –

(a)   within the period specified by rule 7.5; or

(b)   where an order has been made under this rule, within the period for service specified by that order.

(3)   If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –

(a)   the court has failed to serve the claim form; or

(b)   the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and

(c)   in either case, the claimant has acted promptly in making the application.

(4)   An application for an order extending the time for compliance with rule 7.5 –

(a)   must be supported by evidence; and

(b)   may be made without notice.”

First Instance Decision

At first instance, Mr Robertson sought “relief from sanctions for not filing Form N510 before serving the claim outside the jurisdiction to render the service effective under CPR 6.34(2)(b). Alternatively, if necessary, to extend time for service so service can be re-effectuated with Form N510 enclosed.” The judge made it plain that “the dispute between the parties was whether r.7.6(3) applied or whether, when considering permission under r.6.34(2)(b), the court should simply have regard to the relief from sanctions regime identified in r.3.9 and encapsulated in the well-known authority of Denton v TH White Limited” (at [19]). The judge was ultimately persuaded that r7.6(3) did not apply, and instead granted relief from sanctions in respect of filing and serving the N510, retrospectively deeming service to have taken place at the time the Claim Form was served.

Appeal

Google successfully appealed. The High Court found that in this situation r7.6 applied and that r3.9 did not, and gave the following reasons:

• Rule 6.34(2)(b) does not allow a claim form to be deemed to have been validly served on a date when it was not validly served. It is not retrospective (at [39]).
• Rule 7.6 is not inapplicable “either because it related only to service within the jurisdiction or, because r.7.5(2) referred back to Section IV of Part 6, that somehow meant that r.6.34(2)(b) somehow took precedence over r.7.6” (at [40]).
• It was “illegitimate to use the general provision in r.3.9 in an attempt to get round the particular requirements of r.7.6(3). That is a rule of interpretation: the specific must always override the general” (at [41]).
• If the judge’s decision was correct, those seeking to extend time for service outside the jurisdiction would be in a better position than those seeking to extend time for service within the jurisdiction (at [44]).
• Rule 3.9 cannot apply in any event, because the relief from sanctions regime does not operate before the claim has been validly commenced (at [48]).

Mr Robertson cross-appealed the costs decision. Days before the appeal hearing, counsel for Mr Robertson sought to include two further points in the cross-appeal, namely that Google should have but failed to serve an Acknowledgment of Service and/or make an application to challenge jurisdiction under CPR r11(1). The court refused permission to amend the grounds of appeal, not just because of the lateness of the application and the prejudice that would cause, but also because it considered the new point raised to be unarguable.

The question the new point raised was: “is a defendant, faced with what it considers to be defective service, and an application by the claimant (which it has made clear from the outset that it opposes) to rectify that situation, obliged either to serve an AoS or to make an application under r.11?” (at [69]). The Court concluded that it was not:

• The Court held that all the rules concerned with service of the AoS “presuppose that the claim form and/or particulars of claim have been validly served. The CPR build, one upon another, on the assumption that the previous applicable rule has been complied with. The claimant’s obligations as to service are set out in Parts 6 and 7; the defendant’s concomitant obligations are in Parts 9-11. The latter assume that the former have been complied with: otherwise the CPR would be five times as long, having to set out all the potential consequences if a previous step had not been validly taken.” (at [70])
• There was no requirement for Google to make an application under r11: “Here, Google were responding to Mr Robertson’s own application to rectify his invalid service. Google made it plain from the outset that they opposed that application. They were of course quite entitled to do so. It would have been apparent to everyone that, if Mr Robertson’s application failed, the claim form was not validly served, these proceedings would be a nullity, and the court would have no jurisdiction. Accordingly there was no need for a separate r.11 application; that would have simply duplicated paper, time and costs” (at [73]).

So, the rules on service are clear, and cannot be circumvented: service must be effected within the time limits, and if it is not, the only option available to claimants is r7.6(3).

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She is now enjoys working within the team on travel related and other claims.

Eurasian Natural Resources Corporation Limited v Dechert LLP & Others [2025] EWCA Civ 1307 is the latest in a long running piece of litigation that has been rumbling on, in some form or another, since 2013.

The ENRC litigation is one of the few pieces of commercial court litigation genuinely worthy of Hollywood treatment. To cut an (unironically) riveting tale down to its essentials, ENRC is part of a large conglomerate of Kazakhstani origin, formed by its first generation of oligarchs who rose to power after the fall of the Soviet Union. It is headquartered in London, listed on the London and Kazakhstani stock exchanges, and had interests throughout Central Asia and Africa.

In 2013, its solicitors, Dechert, formed the view that they had identified significant misconduct at ENRC, relating to suspected misconduct at ENRC, involving, of all things, the allegedly corrupt sale of a railway line repairing company in the Democratic Republic of Congo to a family member. Dechert (or at least one of its Partners) therefore made disclosures of confidential and privileged material to the Serious Fraud Office (“SFO”).

The SFO accepted this material, notwithstanding the irregular manner in which it was obtained, and commenced an investigation relating to “fraud, bribery and corruption relating to the activities of the company or its subsidiaries in Kazakhstan and Africa”.

The simple fact of the investigation spelled disaster for ENRC. It was delisted from both the stock exchanges, creditors called in their debts, and the company was forced to sell most of its overseas assets, and spend still further resources on a detailed internal investigation. It ultimately came under the ownership of a group known as ERG SARL, a group owned in part by the original founders, but with around a 40% share acquired by the Kazakhstani government.

All of this backfired on Dechert and the SFO is quite spectacular fashion. The criminal investigation floundered, being settled on confidential terms in 2024, but certainly with no convictions to show for the SFO’s efforts.

Perhaps unsurprisingly, ENRC sued Dechert and a partner personally in 2017 and the SFO in 2019. In a split trial on liability in 2022, Waksman J found all three Defendants liable for ENRC’s losses, the Dechert Defendants in breach of their duties to ENRC as legal representatives and the SFO for having induced breaches of contract by the Dechert defendants when it knew or was reckless as to the fact that they were acting without authority and against their client’s interests. 

ENRC’s claim for damages is therefore ongoing. The pleaded value of the claim is something in the order of $300 million. The partner at Dechert was referred personally to the SRA, and appears no longer to be in practice (though no published regulatory decision exists). Not, all things considered, a good day at the office for anyone involved.

The present decision- of more practical day-to-day concern to lawyers- arose in the context of the damages claim. Some $91.3 million of ENRC’s claim relates to increased borrowing costs caused by damage to its creditworthiness by virtue of the investment in 2013-16.

However, early in the quantification process, ENRC recognised (rather belatedly) that it had made something of a textbook error. Contrary to its original pleadings, no more than $12.6 million thereof was ENRC’s loss in its own right. The remainder were losses of a grand total of nine of ENRC’s wholly (or near-wholly) owned subsidiaries or sub-subsidiaries.

ENRC sought to amend its pleaded schedule of loss to clarify the specific entities within the corporate structure which had faced these losses.

Quite apart from the lateness, there was a significant secondary difficulty with this application, which resulted in that application being refused at first instance. Litigants owe a duty to preserve documents for potential disclosure. CPR PD31B para.7 provides:

7 As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.

And in the commercial courts, CPR PD57A para.3.1:

3.1 A person who knows that it is or may become a party to proceedings that have been commenced or who knows that it may become a party to proceedings that may be commenced is under the following duties (“the Disclosure Duties”) to the court—

(1) to take reasonable steps to preserve documents in its control that may be relevant to any issue in the proceedings;

ENRC had complied with this obligation, as had its new parent company ERG, and two of its subsidiaries. The remaining 7 subsidiaries or sub-subsidiaries had not anticipated involvement in the litigation, and so had not. There was, therefore, a risk that disclosable documents had been lost.

The approach described at first instances was as follows:

34 The Judge’s approach was that, once it was determined that the amendments were late and that there was no good reason for the delay, it was for ENRC to demonstrate that there was no possibility that any documents relevant to the issues raised by the amendment had ceased to be available. As ENRC failed in that task, the Judge regarded the risk of non-availability he had found to exist as necessarily seriously prejudicial to the SFO and the Dechert defendants. He further regarded such prejudice as outweighing the prejudice to ENRC in losing a very substantial part of its loss claim because ENRC was the author of its own misfortune.

In coming to this conclusion, the Judge accepted that

(i) he might have determined in due course (had the amendments been allowed) that no or only minimal categories of documents were disclosable, or (ii) any disclosable documents might have been found still to exist or to have been lost prior to the date a litigation hold should have been put in place or (iii) any disclosable documents that were lost due to the delay might not have resulted in prejudice to the defendants of a serious nature or at all.

The Court of Appeal considered this to be the wrong approach in a number of respects, but the overarching point is that it regarded an entirely uncertain and unquantified risk of injustice to the defendants as outweighing the certain and substantial injustice to ENRC.

The starting point should have been to consider the nature, extent and timing of the amendments proposed. A claimant which had proved very serious wrongdoing on the part of the defendants was now, at the pre-CMC stage of the quantum phase, seeking to re-formulate its claim for very substantial losses which had always been pleaded (amounting to some US$128 million including interest) due to a late realisation as to which companies in a group had incurred them. Given that the reformulated loss claim passed the prospects and cogency tests, to refuse such an amendment would be hugely prejudicial to the claimant. 

The Court then had to go on to consider the actual implications of the potential lost material:

1. whether documents or categories of documents would have been disclosable by ENRC if the amendments were permitted;
2. if so, whether those disclosable documents or some of them had ceased to be available between the date when the applications should have been made (and when, it was common ground, a litigation hold would have been put in place) and the date when the applications were in fact made;
3. to the extent any documents were lost or destroyed during the period when a litigation hold should have been in place, whether that would cause prejudice to the defendants. As Males LJ pointed out in granting permission to appeal, it may be that it would be ENRC that would be prejudiced by the absence of its subsidiaries’ documents in proving its case as to diminution in value of its shareholdings. 
4. to the extent that the evidence showed that the defendants would suffer prejudice by the loss or destruction of documents when a litigation hold would have been in place, whether that prejudice is sufficient to outweigh the injustice ENRC would suffer by the loss of its claim. 

In short, a failure to comply with these obligations:

43 … does not carry any automatic debarring sanction and does not in itself cause injustice unless and until it is established that disclosable documents have not been preserved with prejudicial effects.

So, in short, faced with a similar application encountering similar difficulties, the correct approach is to:

1. Start with the circumstances of the application. Is it made early in proceedings, or is it on the eve of trial? What prejudice would be caused by refusal, and how serious is it?
2. What actual significance does any lost material have? Would it have been disclosable? Has it actually been lost and when? What prejudice would it cause the other party? Would that outweigh the prejudice of refusal?

And, perhaps it goes without saying, think very carefully before making any professionally questionable disclosures about one’s client to the SFO.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus.