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Courts continue to ‘like’ a service of documents through Facebook

Bankruptcy Court shows willingness to use social media as an alternative method of service

16 February 2015

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The County Court in Tunbridge Wells is the latest court to allow a service of documents by way of social media after a debtor failed to engage with the proceedings.

The ruling relates to the bankruptcy of a Ferrari dealer and his failure to cooperate with the Official Receiver and his trustee, Quantuma. Following a court order in February 2012, which automatically suspended the debtor from releasing his debts, he persisted in failing to cooperate with Quantuma and ignored letters and other communications sent to him by solicitors, Harrison Clark Rickerbys. The trustee subsequently discovered the debtor was still continuing to trade and was active on Facebook.

Quantuma applied for an order that the debtor appear at court to be examined on oath as to his financial circumstances. Process servers were instructed to serve the Notice of Application personally upon the debtor at his home in London. However, despite the Ferrari dealer agreeing to meet with the servers he failed to attend and notified them he was returning to Romania.

Subsequently, District Judge Lethem made an order in October 2014 requiring the dealer to appear before the court and gave the trustee permission to notify him by means of posting a Notice on the debtor's Facebook account.

Commenting on the order, Chris Newell of Quantuma said: "This is understood to be the first decision of the Bankruptcy Court of its type and shows that the court is increasingly prepared to adopt a modern and practical approach to assist Trustees in Bankruptcy in dealing with difficult debtors".

This is not the first time social media has been used in a bankruptcy case. In March 2011, the Hastings County Court reportedly granted permission for a court order to be served on a defendant via Facebook. Solicitor Hilary Thorpe attempted to serve an order for a debtor to attend court for questioning but without success. Using a case in the Australian Supreme Court, she persuaded the UK court that service via Facebook would be an appropriate alternative as the defendant was a frequent visitor to the site.

In February 2012, it was reported that the High Court had permitted alternative service of a claim form via Facebook for the time. In that case, the claimants, AKO Capital and AKO Master Fund, had been unable to locate one of the defendants at his last known address and wanted to serve proceedings via the social media platform. In making his decision, Mr Justice Teare was satisfied the Facebook account was active and belonged to the defendant.

However, Facebook is not the only medium of social media to have come into use by the courts. In October 2009, Mr Justice Lewison permitted service of an injunction directly on a defendant via Twitter, because the defendant was anonymous and there was no easy way of identifying him.

Ed Crosse, a partner working in financial markets litigation at Simmons & Simmons, commented: "The courts are increasingly willing to consider alternative methods of service; in civil disputes, orders for service via Twitter or Facebook are now common place.

"The question of whether a court will allow service via social media is likely to turn on whether the applicant can demonstrate: a) that its attempts to effect service via the permitted routes have failed; and b) that an order allowing service via a 'post' or a 'tweet' will indeed be effective in bringing the communication to the debtor's attention. Bearing in mind that publication of bankruptcy proceedings on social media is likely to cause significant reputational harm, we can still expect the courts to require compelling evidence on these points before agreeing to make such orders."

John van der Luit-Drummond is legal reporter for Solicitors Journal

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