Weird, wacky and wonderful (‘www’) modes of service

In the second of a series of articles by 4 Pump Court, Barrister Quentin Tannock looks at how information technology is impacting modes of service in the UK and elsewhere.

Given the pervasiveness of social media, it's not surprising that social media activity is routinely used in evidence in both civil and criminal litigations in the UK. It's also not surprising that social media platforms are increasingly used for ‘service of process’.

What may be more surprising is the use of WhatsApp for service of process and the courts’ permitting email, Facebook and ‘data room’ service of freezing orders and of final injunctions made against ‘persons unknown’. Related developments include no hearings where the attendance of unknown respondents is unlikely and where online publication of both judgements and orders is (most likely) more effective than publication by a hearing in open court.

Social media evidence and online proceedings

In civil litigation, tweets and Facebook group posts make increasingly common appearances in defamation cases, for example. Outside the area of defamation, I have been involved in numerous cases where contracts were formed via WhatsApp messages, evidenced by screenshots taken from mobile phones, the most colourful of which was a dispute over a gambling contract, formed by WhatsApp messages and worth slightly over USD 1 million. I am also currently instructed in a relatively major IT dispute where a contract variation was made by Skype messages. As the Skype messages are in writing, the ‘anti-oral variation’ clause in the relevant contract is not engaged. In the background, the 2015 Her Majesty’s Online Court proposal is being progressed. There are pilots running in civil claims, money claims, probate and divorce matters, together with a pilot for full appeals in the First-tier Tax Tribunal to be attended and argued remotely by appellants.

With respect to criminal litigation, I'm told by Barristers working in criminal sets that in certain types of criminal trials (such as murder and rape), analysis of social media activity, together with mobile phone location and usage data, is now entirely commonplace. In the 2015 Birmingham Canal Murder trial, for example, police used mobile phone location data to show the accused’s phone was invariably within a few meters of particular ATM machines whenever money was extracted using the murdered man’s debit card. The use of an accomplice to withdraw funds and, hence, avoid the accused being seen at relevant times on CCTV cameras at the relevant ATMs, did not assist the accused’s defence in this case. Although there is currently no online courts proposal for criminal matters in the UK equivalent to that in respect of civil litigation, a digital case management system is in use in the criminal courts and the use of video links for the provision of witness evidence in criminal matters is increasingly common.

Electronic and online (www) service in the UK

Service by email in civil matters has been relatively commonplace in the UK since at least 2011, when a Norwich Pharmacal order was served against US companies by email under CPR r.6.15 in Bacon v Automattic Inc [2011] EWHC 1072 (QB); [2012] 1 W.L.R. 753. In 2015, in Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 (QB); [2016] 4 W.L.R. 69 default judgement, a final injunction and damages were granted to a firm of solicitors against unknown persons who operated a website accusing the firm of misconduct. The firm had previously obtained permission for service by email, the court finding that it was reasonable to infer that emails sent to a certain email addresses would be brought to the attention of relevant website domain name owners.

Now, in addition to email, social media platforms are being used to effect service in civil litigations. A leading example is CMOC v Persons Unknown [2017] EWHC 3599 (Comm). This case is also the first example of a freezing injunction being granted against ‘persons unknown’ to help secure assets stolen in an online fraud. Other orders granted included disclosure orders binding 35 banks. Of particular interest for this article, service was permitted via Facebook and an online encrypted data room. In subsequent proceedings, CMOC Sales and Marketing Ltd v Persons Unknown [2018] EWHC 2230 (Comm), the Claimant successfully brought a fraud claim against unknown defendants and 30 named individuals and companies. The court found that the defendants had beneficially received assets, disposed in breach of trust and that, in the absence of explanation, the facts were sufficient to establish unconscionable receipt.

In PML v Persons Unknown [2018] EWHC 838 (QB), the claimant was a UK company whose computers were hacked and data was stolen. The unknown defendant emailed the claimant and threatened to publish information unless the claimant paid £300,000. The claimant obtained a without notice interim non-disclosure order, restraining the threatened breach of confidence and ordering delivery-up and/or destruction of the stolen data. The injunction order was served using the email address used by the unknown defendant in emails to the claimant. The Defendant responded to service by removing the password protection on a website which hosted the stolen data. The Claimant then obtained an order ordering the website host to block access, found other websites publishing the stolen data and served the injunction on them. As the Defendant continued to threaten publication, the court continued the injunction and also ordered that the defendant identify itself and provide an address for service.

In Clarkson plc v Persons Unknown [2018] EWHC 417 (QB) default judgement and a final injunction were granted without a hearing against persons unknown, prohibiting the use or disclosure of confidential information obtained from a shipping company’s IT systems. The Claimant was permitted to serve the claim form on the email address used for blackmail threats. Unsurprisingly, the persons unknown did not engage with the proceedings. The Court found (under CPR r.23.8(c)) that a hearing would have added to the expense of the claim, without serving a sufficiently useful purpose. The Court also found that the principle of open justice could be properly respected (in compliance with ECHR art.6) without a hearing by making the order and publishing the judgment online, the Court finding that this potentially made the judgement and order more accessible than if dealt with at a hearing.

Other recent UK cases concerning service by the ‘alternative method’ of email include:

• European Union v Syrian Arab Republic [2018] EWHC 181 (Comm), a case finding that the EU had validly served proceedings on the Syrian Arab Republic via email under the State Immunity Act 1978 s.12(1).
• Glencore Agriculture BV (formerly Glencore Grain BV) v Conqueror Holdings Ltd [2017] EWHC 2893 (Comm); [2018] 2 All E.R. (Comm) 352, a case deciding that whether or not service of notice of arbitration by email was valid service under the Arbitration Act 1996 s.76 depended on the application of agency principles. In short, for service to be valid, the relevant employee must have actual or ostensible authority to accept service of legal proceedings.
• Assethold Ltd v 110 Boulevard RTM Co Ltd [2017] UKUT 316 (LC); [2017] 4 W.L.R. 181, a case holding that copies of a notice of a claim (invoking statutory ‘right to manage’ provisions) could be properly served on tenants by email pursuant to the Commonhold and Leasehold Reform Act 2002 s.79(8).

Electronic and online (www) service of process elsewhere

The trend in the UK is matched by similar developments in other jurisdictions:

• India
  Starting in 2016, the Indian High Court has approved service by WhatsApp in cases such as Tata Sons Limited & Ors v John Doe(s) & Ors [2016], Kross Television India Pvt Ltd & Another v Vikhyat Chitra Production & Ors [2017] and SBI Cards & Payments Services Pvt Ltd v Jadhav [2017]. In the latter case, the Court held that WhatsApp’s "blue tick" provided evidence that a certain document had been read.
• Nigeria
  In Mohammad Awwaldanlami, Esq. v Governor of Taraba State & 24 Ors (Suit No: TRST/11/2018, Motion No: TRST/67M/18), the Court ordered that "the originating process and other processes of this court in respect of the substantive case, including Order or Judgment of the court should be served on the third to 25th Defendants/Respondents by posting and sharing on social media."
• Singapore
  In David Ian Andrew Storey v. Planet Arkadia Pte Ltd & 2 others [2016] SGHCR 7, the Court granted an application for substituted service "through email, Skype, Facebook and an Internet Message Board". The Court held that requirements for an order for such substituted service included proof that (i) the person served used the relevant electronic platform, (ii) recently.
• USA
  As long ago as 2015, in the case of Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709, 711 (N.Y. Sup. Ct. 2015), a New York Court noted that "it would appear that the next frontier in the developing law of the service of process over the internet is the use of social media sites as forums through which a summons can be delivered." More recently, in K.A. v. J.L., 450 N.J. Super. 247 (Ch. Div. 2016), plaintiffs were permitted to serve process on a defendant through Facebook and in Wimbeldon Fin. Master Fund, Ltd. v Weston Capital Mgt. LLC 2017 NY Slip Op 31961(U), 'alternative service' was permitted though the court’s own electronic filing system (the NYSCEF system). However, US Courts have also denied applications to effect service through a defendant’s social media accounts. Typically, such denials occur when a plaintiff does not establish a basis for the alternative means: service by alternative means is not available merely for the convenience of the plaintiff. An example refusal is Miller v. Native Link Const., LLC, No. 15-1605, 2016 WL 247008 (W.D. Pa. Jan. 21, 2016). Here, the Court refused an application to permit service via LinkedIn where the plaintiff could not show that service could not otherwise be effected in accordance with Pennsylvania’s procedural rules.

As the popularity of social media platforms waxes and wanes, and as technology continues its seemingly inexorable advance, it seems inevitable that the use of different means of achieving service of documents in legal proceedings in the UK will be desirable in the future. It also seems certain that the UK courts will continue to pragmatically assess and approve of effective means of service proposed by innovative lawyers on behalf of their clients.

The trend towards electronic and online service dovetails neatly with the Lord Chief Justice, Lord Burnett of Maldon’s comments at the International Forum on Online Courts: The Cutting Edge of Digital Reform, where he proposed that UK Court forms, processes and some hearings be optimised for smartphones, "giving litigants effective access to justice from the palm of their hand". Smartphones are nearly ubiquitous in our society. Service of process by smartphone app and even smartphone hearings may be just around the corner.