Richard Power and Sabrina Devenish explain how their firm handled a recent case where a defendant was proving difficult to track down – by turning to Instagram
Service of documents on evasive defendants is a common challenge for claimants. From no / inaccurate address or identity information, to defendants simply refusing to accept documents, the hurdles to service can be manifold.
In this ever-changing world of emerging technologies, electronic methods of service may solve this issue 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.
In a recent case before the High Court (QB), Clyde & Co, acting for the claimant, obtained an order for service on the defendant of a judgment in default via Instagram, after we unsuccessfully attempted to serve the judgment via post and personal service.
Existing rules for service
Pursuant to Civil Procedure Rules (CPR) 6.3 and 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 rule 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, or
- any method authorised by the court, under CPR 6.15 or 6.27.
Electronic messages via Instagram, Facebook or other social media are likely to fall under “any other means of electronic communication”. However, this requires prior indication in writing from the defendant, or the defendant’s solicitor, that they are willing to accept this method of service and it is subject to any limitations that apply according to the PD.
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 [2018] UKSC 12, the Supreme Court concluded that a litigant in person’s service by email, without the accepting party’s authority, was not valid service.
Service via other means of electronic communication
CPR 6.3(1)(d) and CPR 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 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.
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 article was first published on Clyde & Co’s website on 29 December 2020 and is reproduced with kind permission.
