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Service of judgment in default permitted via Instagram

In a recent case before the High Court (Queen’s Bench Division), Clyde & Co, acting for the claimant, obtained an order for service on the defendant of a judgment in default via Instagram, after attempts to serve the judgment via post and personal service were unsuccessful.

Service of documents on evasive defendants is a common challenge for claimants. From no (or inaccurate) address or identity information, to defendants simply refusing to accept documents, the hurdles to service can be manifold.

Brexit is now adding to those difficulties where parties have to serve English court documents on a party in Europe, because the EU Regulation regarding service of process no longer applies. However, even after Brexit, English law and the English legal system remain a suitable, and often preferred, option for contracting parties worldwide.

In this ever changing world of emerging technologies, electronic methods of service may solve the issue of service, no matter where a party has to serve, and the courts show more and more willingness to accept alternative means of service not only for statements of case, but also for orders and judgments.

Existing rules for service

Pursuant to CPR 6.3 and CPR 6.20, valid service of the claim form and other documents can be effected by any of the following methods:

  • Personal service in accordance with CPR 6.5 or 6.22.
  • First class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction (PD) 6A.
  • Leaving it at a place specified in CPR 6.7, 6.8, 6.9, 6.10 or 6.23.
  • Fax or other means of electronic communication, in accordance with PD 6A.
  • Any method authorised by the court, under CPR 6.15 or 6.27.

Electronic messages via Instagram, Facebook, LinkedIn or the like are likely to fall under “other means of electronic communication”. However, this requires prior indication in writing from the defendant, or the defendant’s solicitor, that he is willing to accept this method of service and it is subject to any limitations that apply according to PD 6A.

Alternatively, a party may make an application seeking a court order that either confirms that steps already taken to serve the claim form on the defendant by an alternative method were good service, or permits future service by an alternative method, specified in the application.

The importance of these restrictions on alternative service (the requirement of prior acceptance of the chosen method by the defendant, or a court order) cannot be stressed enough.

For example, in Barton v Wright Hassall, the UK Supreme Court concluded that a litigant in person‘s service by email, without the accepting party’s authority, was not valid service.

Service before and after Brexit

The Brexit transition period concluded on 31 December 2020. The end of the transition period brought to an end the applicability of the EU Service Regulation (1393/2007) which promoted and enabled cooperation between courts in the UK and EU member states on service of legal process matters.

This Regulation simplified service within the EU and enabled quicker timelines. As of the date of this post, the UK and the EU have not yet reached an agreement on any new regime for similar cross-border legal cooperation and parties serving documents in the EU will have to rely on the domestic laws of the country where service is being effected or the Hague Service Convention 1965, to which both the UK and the EU are contracting states.

With respect to service of English court documents on defendants within the jurisidiction, parties might now more than ever look to the service of documents via other means of electronic communication (CPR 6.3(1)(d) and CPR 6.20(1)(d)).

Service via other means of electronic communication

CPR 6.3(1)(d) and CPR 6.20(1)(d) provide that service on the defendant can be made via fax or “other means of electronic communication” in accordance with PD 6A. Nowadays, the courts tend to allow alternative service via email, if supported by valid reasons, but defendants seem to be aware of this and are able to evade service by deleting their email account.

In the matter handled by Clyde & Co, the defendant never replied to any letters and emails sent to his known home and email addresses. However, it became apparent that the defendant actively used an Instagram account, uploading pictures almost weekly. In addition, his mobile phone number was still active.

Service via Instagram, or other messaging services for that matter, is generally challenging, as the legible reproduction of documents in the form of an image presents technical difficulties.

Clyde & Co avoided this issue by applying for service via email and first-class post, and notice via Instagram and text message, which notice should also stand as alternative service. There was no need to attach actual images of the documents. However, a link to the documents was added, so that the defendant could access them, simply using his Instagram account or mobile phone.

This method of service via electronic means, be it via Instagram, Facebook or any other new social media platform is likely to gain more and more traction in the upcoming years, not only in England and Wales, but worldwide.

Conclusion

Whilst courts in common law jurisdictions have previously made orders allowing the service of proceedings via social media, including Twitter and Facebook, this is believed to the first case in which a court in England and Wales made an order permitting service via notice on Instagram and via text message.

This development is a further indication that the English courts are willing to take a modern approach to service by adapting procedures to new technologies and by accepting that in this social media dominated world, service via Facebook, LinkedIn, Instagram and alike seems to be a more and more appropriate method of bringing proceedings to the attention of an evasive defendant.

This approach is also welcomed considering the changes in the process of service after Brexit and is a sign of the willingness of the courts to support the litigation procedure and to adapt to changes in- and outside of the law, whatever they might be.

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