Facebook is a global phenomenon. This month it celebrates its 5th birthday. From its humble beginnings as a social networking site for members of Harvard University in February 2004 to its current, 150 million world-wide registered users (growing daily), it seems to have “invaded” every aspect of our lives in a relatively short period of time. Facebook is now regarded as a legitimate business tool by some and in these circumstances it is perhaps not surprising that the first recorded use of Facebook to serve court documents was reported in December 2008.
In Australia’s Capital Territory Supreme Court a ground-breaking ruling was issued in early December 2008 to the effect that lawyers for a party could use Facebook to serve court notices on the other party. The background to the ruling was that the plaintiff’s lawyers had been trying, unsuccessfully, to serve a court notice on the defendants. The lawyers turned to Facebook to see if any information could be found about the defendants there, having attempted personal service on the defendants at the defendants’ stated residential address on 11 occasions between 8 November and 6 December 2008. An investigation on Facebook turned up profiles for the defendants. The Facebook profiles showed the defendants’ dates of birth, email addresses and list of friends. The list of friends for each defendant showed that the defendants were friends with one another. This information was enough to satisfy the Court that the Facebook profiles were the profiles of the individuals defending the proceedings and the Court held that communication via Facebook was an appropriate and satisfactory way of effecting service of court notices on the defendants.
Service by Facebook is not the only way in which the courts have made use of changing technology. A further illustration of using modern technology to serve court notices emanates from the New South Wales Supreme Court. In 2008 that Court ruled that Sonny Bill Williams, a New Zealand International rugby league player, could be served with a court notice via text message. Mr Williams had been involved in a high profile defection from the Sydney Bulldogs Rugby League Club (the “Bulldogs”) to Toulon Rugby Union in 2008. The Bulldogs had tried to serve Mr Williams on several occasions. Their efforts had included instructing process servers in two different countries and they were able to demonstrate to the Court that they had spent a lot of time and effort trying to serve Mr Williams personally, but without success. In these circumstances the Court allowed the Bulldogs to serve a subpoena on Mr Williams via SMS text message.
This is all well and good, but would the same approach be applied in Guernsey? There is no reason to think that it wouldn’t be. Although the Royal Court was open to allowing alternative methods of service where appropriate, last year new rules came into force which were designed to provide the Court with all the tools required to achieve justice. The Rules have an overriding objective, which is to enable the Court to deal with cases justly. This includes considerations such as saving expense and dealing with cases in a way which is proportionate, expeditious and fair. The Rules include provisions offering flexibility in relation to service of documents,
The rules governing service are contained in Part II of the Royal Court Civil Rules 2007. Rule 7 makes provision for what is called “Substituted service”. The rule allows service to be given by notice, advertisement or otherwise, once all conventional methods have been exhausted or where these would entail undue expense. This rule has been used to allow service of documents on a party by email, where the party had left Guernsey leaving no forwarding address but was in contact with the plaintiff by email.
This rule could form the basis of an application to serve documents via a platform such as Facebook. There are obvious cost advantages to serving court notices via Facebook where a defendant is evading conventional service methods and it is clearly established that the individual appearing on Facebook is indeed the defendant to the proceedings.
It can only be a matter of time before an application under rule 7 is brought before the Royal Court. It is likely that the Royal Court’s attitude to such an application will depend on the specific circumstances of each case. However, given the flexibility shown by the Royal Court previously in relation to the service of documents and the introduction of the overriding objective of the Rules, we consider that there is scope for the use of platforms such as Facebook to serve documents.