Serving documents on the other side correctly is a crucial part of the litigation process. Failing to comply with the court rules may prove fatal to a claim. However, serving documents effectively on a party who cannot be found or does not wish to receive them can be anything but straightforward. Under CPR 6.15, the courts have the discretion to permit service by alternative means or at an alternative place where there is ‘good reason’, and recent cases suggest that they are increasingly willing to allow the use of modern platforms of communication (including social media) to effect service.
When may the court permit alternative service?
- Before service – it is far more prudent to request the court’s permission prior to serving as then the court cannot reject the alternative method chosen. By acting promptly the court’s permission can be obtained from the outset, which is a far more comfortable position for any serving party.
- Retrospectively – the court can order that methods already undertaken may amount to a legitimate means of service. This offers relief where a party may have had to effect potentially inadequate service in a short period.
What constitutes ‘good reason’?
The courts have made clear that each case will be decided on its own facts, with all circumstances taken into account. However, some recent decisions can be used as guidance.
For example, in BNP Paribas SA v OJSC 'Russian Machines' and others  it was held that the risk of delaying the trial date was a good reason to permit (retrospectively) alternative service. However, a party’s mere wish to speed up the process would not suffice.
On the other hand, in Power v Meloy Whittle Robinson Solicitors  the court served the claim form against the claimant’s instructions. The defendant disputed service as it was sent to them directly rather than their solicitors. This constituted ‘an overwhelmingly good reason’ for granting retrospective alternative service.
In Ticketus the court was satisfied that:
- the debtor had been duly served with the order, and
- there was sufficient evidence to prove that the debtor's failure to attend was intentional.
Finally, ‘good reason’ will not be found where the claimant would have the ability to extend time for serving a claim form via normal methods of service, as opposed to using alternative means without an extension of time.
Alternative service can be varied and flexible
In Ticketus LLP & another v Craig Thomas Whyte and others, the judgment debt was approaching £20 million and throughout the litigation Whyte (W) had attempted to evade service and any form of communication.
Ticketus (T) were granted several orders for substituted service during the proceedings. One order was permitted to be sent to W’s last known email address; one order was allowed to be served through W's father, who had played some part in the litigation, and finally, T's solicitors left a voicemail message on W’s mobile phone and sent him a text message as means of notifying him of a hearing date.
Social media as a means of service
Ticketus is the most recent evidence of the courts seeking to get to grips with the reality of modern communication.
In the case of AKO Capital LLP & Another v TFS Derivatives & Others, the claimants struggled to locate one of the defendants. However, they managed to demonstrate to the High Court that a particular Facebook account did belong to the defendant and it was active and frequently accessed by him. Consequently, they were given permission to serve via this account.
Further to this, in the case of Donald Blaney v Person(s) unknown (not reported) (2009) Lewison J allowed an injunction to be served on the defendant, who was unknown and not easily identified, via Twitter.
Advice for the future
These recent cases highlight the need for parties to anticipate actual and potential difficulties with effecting service, and recognise the most appropriate alternative means for that set of circumstances. They also suggest that both parties and the courts alike should continue to think outside the (post)box, and employ a combination of alternative means in order to be able to prove effective service.