Service by social media will only be allowed in limited circumstances

In February 2011 the High Court gave permission for a Part 20 claim form and particulars of claim to be served by electronic means by attaching them in.pdf format to a message sent via Facebook to an individual defendant. The case involved a £1.3m claim brought by AKO Capital LLP and Master Fund Ltd against their brokers TFS Derivatives, Anjam Ahmad (employee of AKO Capital) and Fabio De Base (employed by the broker) for over payments of commission. TFS Derivatives denied liability but in the alternative sought a contribution from Ahmad and De Biase should they be held liable.

This decision was the first time that the High Court had ordered service via a social networking site under CPR 6.15 - service by alternative means. It came after a county court permitted in March 2011 service by Facebook and a decision in October 2009 that allowed service of an injunction via Twitter. Courts in Australia and New Zealand have also previously permitted service via social media sites.

The High Court decision has prompted much speculation as to whether this method of service will become widespread. What service by Facebook or other forms of social media recognises is that people's social networks and forms of communication are changing. While an individual may move around the country, usually their access to Facebook and other social media sites, for example LinkedIn, will remain constant. Usage of social media as the primary form of communication is only likely to increase. The High Court in this decision appears to embrace the movement and acknowledges that change is required to England and Wales legal practice in order to accommodate changes in society.

Good reason

The methods of service rules in the CPR are arguably the most fundamental, as failure to effect valid service cannot be overcome.

The application for service via a social networking site is made under Rule 6.15 of the CPR, which permits service by an alternative method (see box).

A party seeking alternative service must have previously exhausted attempts to serve the defendant at the place specified in CPR Rule 6.9 (where no address for service has been given).

Where the defendant cannot be located at the places specified in the table at Rule 6.9 (2) places 1-3 then the claimant must take 'all reasonable steps to ascertain the address of the defendant's current residence or place of business' (CPR Rule 6.9 (3)) . In the event that the claimant has taken all reasonable steps and ascertained the defendant's current address, the former must first attempt to effect service at that address and it is only after this, or where no current residence can be identified, that the claimant must consider service at an alternative place or by alternative means (CPR Rule 6.9 (4) (a) and (b)). Only once these steps have been taken can the claimant proceed to make an application for alternative method of service.

Application for alternative method of service can be made before service (CPR 6.15 (1)) or retrospectively after the alternative method of service has taken place (CPR 6.15 (2)). Both types of applications must be supported by evidence and need to show the extent to which a claimant is satisfied that there is no reason to believe that the Defendant no longer resides at an address specified in 6.9 (2). The claimant must also satisfy the court that the method of alternative service will mean that the documentation will be brought to the attention of the defendant.

The courts will only make an order for an alternative method of service, such as via Facebook, if in its discretion there is good reason to do so.

A recent example of the court's review of what constitutes 'good reason' is in the case of BNP Paribas SA v OJSC 'Russian Machines' and Ors ([2012] EWHC 1023). An application in this case was made under Rule 6.15 (2) for retrospective service. The court held that the risk of delaying a trial date was a good reason to retrospectively permit service by an alternative method. However, it clarified that the desire to speed things up alone, or as a tactical method in a jurisdiction race, would not constitute a good enough reason for the court to exercise its discretion.

A leading case in Australia in 2008 was between MKM Capital Property Limited and Carmela Rit Corbo and Gordon Kingsley Maxwell Poyser (a bankrupt)(No SC 608 of 2008). The claimant solicitors had difficulty in serving a default judgment and resorted to tracking the individual down on Facebook. The solicitors provided the with details of the Facebook pages of the defendant, which showed his 'friends' lists, date of birth and email addresses. Meyer Vandenberg, the claimant's solicitor, demonstrated to the Australian court that there were sufficient grounds to show that the default judgment would be brought to the defendant's attention. The New Zealand courts have also permitted service via Facebook (see AXE Market Gardens v Craig Axe CIV 2008-485-2676).

In October 2009 the High Court permitted service of an injunction via Twitter. This case concerned an individual being impersonated on Twitter - Donal Blaney - and an injunction was sought against the unknown defendant who could not be identified other than through his Twitter username. The only other option for the claimant's solicitors, in our opinion, would have been to make a Norwich Pharmacal Order against Twitter to obtain the registration information of the user. When faced with the option of using social media as a method of service compared with the lengthy and costly Norwich Pharmacal process, it is perhaps unsurprising that the court can satisfy itself that it is dealing with cases in a proportionate and cost effective manner.

Necessarily restrictive

What is unclear from these decisions, as there are no public judgments, is the depth of analysis of what constitutes 'good reason' for service via social media sites. From looking at the cases where service by alternative method has been sought in cases involving service out of the jurisdiction, The courts have been necessarily restrictive and are keen to restrict the ability of the applicant to take advantage of circumventing the strict processes

It is likely to be a straightforward process to establish whether a defendant has a Facebook or Twitter account and there is no doubt that service via social media could prove a quicker and cheaper process, particularly in the face of an elusive defendant who is taking steps to avoid service.

However, there are still some questions that need to be decided about this form of alternative service such as: how will it come to the attention of the individual concerned and only that individual? The privacy of an individual's information on the internet is currently topical and this process arguably conflicts with the movement that an individual should be given more control about how their information is used and for what purposes.

The changes in the CPR and court system in the last five years have been significant. It is becoming clear that the courts are keen to ensure that the justice system recognises the practicalities of modern life and business practice, and are keen to embrace those changes as far as possible. It is highly unlikely that there will be volumes of applications but it is likely to be used increasingly. The limited case law at this stage shows that judges are keen to exercise their discretion in this regard, which means that legal practitioners must be more alive to service by social media at an early stage.