Liane Bylett, solicitor in our Commercial Disputes Team, explores the revolutionary use of social media sites, such as Facebook and Twitter, for service of Court papers.
During the course of litigation, some legal documents need to be served upon the other party. The Civil Procedure Rules contain strict rules on how and where documents can be properly served, most of which are traditional methods of sending documents (for example by first class post, or even, if overseas, though diplomatic channels). It is important for parties to get service right, as failure to do so can result in dire consequences. In the recent case of Brown v Button , judgment was set aside on the basis that Button was not properly served with the claim form. However, the Court has the power to permit service by an alternative method or at an alternative place if there is good reason to do so.
There is a growing trend towards permitting service by way of modern methods including text messaging, Facebook and Twitter. There are a number of interesting cases in this area, which are explored further below.
Back in 2008, Australian lawyers were experiencing difficulties in serving default judgment upon two defendants and so the lawyers used Facebook to try to locate them. This resulted in an application being made to the Australian Capital Territory Supreme Court for service via Facebook. The judge was shown printouts of the personal information displayed on the defendants' Facebook pages and was satisfied that a private message on Facebook would be sufficient to bring the judgment to the defendants' attention.
In March 2009, the Wellington High Court in New Zealand followed suit by permitting service upon a defendant by Facebook. Whilst these two decisions are not binding in English law, they are persuasive because both Australia and New Zealand are Commonwealth countries with similar legal systems. And, as you will see below, it did not take long for English courts to adopt the idea. Logical, but radical!
First Reported English Cases
One of the first English cases considering service by social media is the case of blogger and Twitter user Donal Blaney in October 2009. Mr Blaney obtained an injunction against another blogger who was impersonating him on Twitter. Due to the nature of the internet, the defendant's true identity was not known. It was open to Mr Blaney to apply for an order (known as a Norwich Pharmacal order) for Twitter to reveal the true identity of the blogger, but this would have been a lengthy and expensive process. Instead, Blaney's lawyers applied for service of the injunction via Twitter. Permission was granted and the defendant complied with the injunction, even though he had not been "personally" served face to face, usually a pre-requisite to the enforceability of injunctions.
In early 2011, it was reported that Hastings County Court had permitted service by Facebook on a recalcitrant defendant. The lawyers in this case had reportedly tried the traditional methods of service without success. However the Court was satisfied that the Facebook user identified by the lawyer was in fact the defendant and, no doubt having the Commonwealth decisions in mind, permitted service by Facebook for the first time in the UK. Whilst this was an interesting ruling, decisions made in the County Court are not generally binding on any other courts in future cases.
Recent High Court Decision – TFS Derivatives
In February 2012, Mr Justice Teare in the High Court granted permission for a claim form to be served by Facebook. This is an important decision because High Court decisions are usually binding on lower courts (County Courts). This case involved a claim for £1.3m against TFS Derivatives in respect of commission charges. TFS Derivatives wanted to join its former employee, Fabio de Biase, to the action by serving a claim form upon him. The claim form had been served upon Mr de Biase's last known address, but there were concerns that he was no longer living there.
In order to persuade the judge that service by Facebook should be allowed, the lawyers had to prove that the Facebook account belonged to the defendant and that it was regularly accessed by him. The defendant was one of 17 people with the same name on Facebook. However the lawyers produced evidence that Mr Biase was friends on Facebook with his former colleagues at TFS and that recent friend requests had been confirmed. Mr Justice Teare held that there was adequate evidence to persuade him that the account identified by lawyers belonged to the correct Fabio de Biase and that it was an active account. Accordingly the order for service by Facebook was granted.
It appears that the English Courts are attempting to adapt to the modern world and keep up with the developments in social media. On the basis that social media sites only seem to grow in popularity as the years go by, it is likely that there will be more applications of this kind in the future.
However it should be borne in mind that in most of the reported cases the traditional methods of service had either been exhausted or impossible. As yet there is no provision in the Rules for service by social media sites as a "run-of-the-mill" alternative and so applications to the court must be made for permission. It must be proven that the defendant cannot be served using the usual methods.
Judges are also alive to the possibility that anyone can set up an account with a false identity and so have required evidence to prove that the website user is in fact the defendant. However, despite these issues, this is undoubtedly an interesting development in the law on service which we would expect to develop further in the future. For those who may be evading service of court papers, social media may not be as much fun as first thought.
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