Recently this year, Mr Justice Teare authorised a claimant to serve a claim to a defendant via Facebook for the first time in the High Court.
Australia and New Zealand –both Commonwealth countries with similar legal systems – are well ahead, having allowed service of legal documents by Facebook and Twitter since 2008. However change has been in the air in England for some time, as a similar ruling was made at the County Court in October 2009 whereby permission was granted to serve an injunction via Twitter.
The case is a commercial case and involves a £1.3 million claim by two investment managers against their broker and two of its employees. The broker denied responsibility and argued that in case it was held liable, it was entitled to recover a contribution from the two individuals, however no one was sure of the current address of one of the employees, a Mr Fabio De Biase.
The circumstances of this case were very specific: the defendant was a former employee of the claimant and some of his former colleagues were still working for the claimant and were in contact with the defendant via Facebook. They were therefore able to identify him from his photo and also establish that the account was being used as he had recently accepted some of their requests of friendship. The judge was therefore convinced that it was impossible to have his identity mistaken for someone else with the same name.
The Civil Procedure Rules deal with service of claim forms and other documents in the jurisdiction (England and Wales), in the UK and within the EEA.
There are two underlying principles which are encompassed in all the rules on service: (1) correct dispatch of the claim within its validity period and (2) effective service, so that the court has jurisdiction over the dispute. The general aim of the provisions on service is that insofar as possible documents have to actually come to the attention of the party being served.
Service is defined in the glossary to the CPR as “steps required by rules of court to bring documents used in court proceedings to a person’s attention”.
CPR 6.3(1) provides that a claim form may be served on an individual by any of the following methods:
- Personal service in accordance with rule 6.5 (i.e. giving the documents directly to the party)
- First class post- dx- or other service which provides for delivery on the next business day
- Leave in a specified place as per CPR 6.7, 6.8, 6.9 (or 6.10 in respect of Crown proceedings). In brief those places are: at the defendant’s lawyer, at an address that the defendant has provided or at a default address. The default address will only come into play where personal service is not required under CPR 6.5, and the defendant has no legal personal representative and has not otherwise provided an address.
- Fax or other electronic means of communication. The key point to note here is that consent to service by this method is required, which can be given either impliedly or expressly. In particular for service via email Practice Direction 6A requires that the party served should always be asked if there are limitations to the format in which documents can be received and the maximum size of attachments. The claimant should always tag the email so to obtain an electronic receipt confirming that the email has been both delivered and read.
- Any method authorised by the court
The place of service will ordinarily be the usual or last known residence of the individual. The claimant must take reasonable steps to ascertain the defendant’s current address or place of business and if unable to do so the claimant must consider whether there is an alternative place or method by which service may be effected. He then must seek an order for alternative service of the claim and this is where the new case establishes a new era for the service of claim forms.
There are no details on how service was then practically effected using Facebook, but it was almost certainly carried out by way of a private message with the documents attached by PDF sent by the solicitors of the claimant. However, at the time of writing Mr De Biase has not yet participated in the proceedings.
What is important here is that the courts recognised the increasing power of social networking sites like Facebook. This is clearly another example of the English case law system being by nature a flexible means in the hands of the judges which allows them to adapt rules of law, which are sometimes old and obsolete, to modern life and modify legal procedure taking into account changes of society.
Partner at Pini Franco LLP
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