Are the English courts ready for service through Facebook?

On 16 December 2008, a judge in the Australian Capital Territory Supreme Court permitted service of a default judgment via the social networking site, Facebook: MKM Capital Property Limited v Corbo and Poyser (No. SC 608 of 2008). No written judgment is available. However the details are known through the press coverage following the decision.

Facts

The defendants failed to keep up repayments on a loan from mortgage provider, MKM, and did not appear in court to defend the action. MKM obtained a default judgment for the loan amount and possession of the defendants' house, but could not locate the defendants to serve it on them personally, as required under the relevant rules.

MKM's lawyers then discovered the defendants' Facebook profiles, which showed their dates of birth, email addresses and "friend" lists, and that the co-defendants were "friends" with one another. When a print-out of this material was shown to the court, the judge found that this was reasonably likely to bring the document to the attention of the defendants and ordered substituted "Service of the default judgment be effected on both of the Defendants by send[ing] a private message via computer to the Facebook page of the First and Second Defendants informing the Defendants of the entry and terms of the default judgment".

It does not appear that the judge in this case was referred to an earlier Australian decision of the Queensland District Court in Citigroup Pty Ltd v Weerakoon [2008] QDC 174 (16 April 2008). In that case, an application for substituted service of a statement of claim on a defendant by email to his Facebook page was refused, because of the "uncertainty" of the Facebook page, the fact that anyone can create an identity that could mimic the true person's identity, and the fact that the judge was not satisfied that the person who created the Facebook page was indeed the defendant, although the judge noted it "may well be".

Service by electronic means in England and Wales

The recent amendments to Part 6 of the Civil Procedure Rules (CPR) and Practice Direction 6A (PD6A) include changes to the rules for service of the claim form and other documents by electronic means:

• Service by fax or email - Service by fax and other electronic means is permitted where the party to be served or their solicitor has indicated in writing that they are willing to accept such service and has given the fax number, email address or other electronic identification to which it must be sent (PD6A paragraph 4.1). A fax number set out on the writing paper of the solicitor acting for the party to be served or a fax number, email address or electronic identification set out on a statement of case or a response to a claim filed with the court is sufficient written indication for these purposes. Whilst the amendments to PD6A allow service by email, an email address set out on the writing paper of the solicitor acting for the party to be served is only to be used where it is specifically stated that the email address may be used for service.

  While the rules relating to service by email in Part 6 have not been significantly amended, the Civil Procedure Rule Committee (CPR Committee) have stated that in the longer term they think that provision of email addresses by legal representatives should be made compulsory.

• Service by text message - PD6A paragraph 9.3 now sets out some examples of what evidence is required for particular methods of alternative service, to show why the applicant believes that the document is likely to reach (or have reached) the person to be served by the method or at the place proposed. In this context, an email address to which the document will be sent must be one which is "likely to come to the attention of a person holding a senior position in that company". There is now also an explicit reference to service by sending a SMS text message or leaving a voicemail message at a particular telephone number saying where the document is, for which the evidence must show that the person serving the document has taken (or will take) appropriate steps to ensure that the party being served is using that telephone number and is "likely to receive the message".

Would service via Facebook be permitted under CPR Part 6?

Assuming the party to be served hasn't expressly indicated that he is willing to accept service via his address on Facebook (which arguably would be sufficient in accordance with CPR 6.3(1)(d), 6.20(1)(d) and PD6A paragraph 4.1) there are two contexts in which service via Facebook might arise: dispensing with service and alternative service.

Power of the court to dispense with service

"Exceptional circumstances" are required before the court may dispense with service of the claim form (CPR 6.16). This test applies both retrospectively and now prospectively, although there is no such express requirement of exceptional circumstances for the court to dispense with service of other documents (CPR 6.28). An application to dispense with service can be made in a case where a party has made an ineffective attempt in time to serve by one of the methods permitted under CPR 6.3 or 6.20, or where there has been some "comparatively minor departure" from the permitted method of service (such as service by second class post), but the recipient's attention has been drawn to the claim form or other document in time in any event.

The pre-October 2008 case law indicates that the courts generally take a restrictive approach when applying the "exceptional circumstances" test (and are reluctant to lay down firm principles in respect of how the court's discretion in such cases should be exercised). For instance, in Kuenyehia and others v International Hospitals Group Ltd [2006] EWCA Civ 21, the Court of Appeal held that service by fax in circumstances where the written consent of the recipient to that course had not been obtained was more than a "minor departure" from the permitted methods, such that service should not be dispensed with. This is despite the fact that the parties had prior communications on that fax number and the defendant had received a faxed copy of the claim form in time (and had therefore suffered no prejudice).

Even if it is viewed as a form of email service, it therefore seems likely, unless there were other exceptional circumstances, that a court would be reluctant to dispense with service of a claim form served via Facebook (without the written consent of the defendant), and caution would certainly need to be exercised in respect of the service of other documents using this method.

Application for alternative service

One of the key amendments to CPR Part 6 relates to the steps that must be taken by a claimant serving a claim form to ascertain an individual defendant's current residence or place of business and, if he considers that there is an alternative place or method at or by which to serve, to make an application for alternative service, for which retrospective applications are now permitted (CPR 6.9). That duty arises where the claimant has reason to believe that the defendant no longer resides or carries on business at his usual or last known address.

As before, the court may make an order permitting service by an alternative method or at an alternative place where it appears that there is a "good reason" to authorise that service (CPR 6.15 or 6.27). The approach of the courts to interpreting this test in the past has been relatively restrictive, and may be even more so in the case of the new retrospective applications. It has been held that an alternative service order is an "exceptional order", in respect of which the court must be satisfied that there is a "good reason" for the order, and must then go on to decide whether in the exercise of its discretion it should make such an order (Albon v Naza Motors [2007] EWHC 327 (Ch)). At both stages, the court will have in mind the overriding objective, all the facts of the case including the conduct of the parties (such as the efforts that have been made to serve by the permitted means in the case of the serving party and attempts to evade service by the other party), and whether the making of the order would enable the court to deal with the case justly.

Whether alternative service via Facebook would be permitted by the English courts would therefore depend upon whether there is "good reason" in all the circumstances of the case. This means proving that it is not possible to serve by the usual means and that service by this method is appropriate.

Taken together, the cases of MKM Capital and Citigroup show that there are two principal concerns with permitting substituted service via Facebook. Firstly, whether it will in fact bring the document to the attention of the defendant and, secondly, to ensure that it is only the defendant who receives the document. Privacy issues surrounding Facebook and whether it and other social networking sites are open to abuse are matters that have already come before the English courts (for example in the misuse of private information/defamation case of Applause Store Productions Limited, Matthew Firsht v Grant Raphael [2008] EWHC 1781) and it seems likely that they will do so again in the future.

Conclusion

Some of the recent amendments to Part 6, outlined above, have suggested a move in favour of service of documents by electronic means. Whether that might lead to orders for alternative service by means of Facebook in this jurisdiction, however, remains to be seen.