What do you do if you can't serve documents on the other side in the usual way?

13th January 2015

Failure to serve a document effectively (i.e. in accordance with the Civil Procedure Rules (the CPR)) can have disastrous consequences for a claim, but what do you do if you can’t serve documents on the other side in the usual way, either because you can’t find them or because they are being difficult about accepting documents?

The English courts have the power under CPR 6.15 and 6.27 to allow service by alternative methods or at a place other than the other party’s current residence or place of business. Over the last few years, the courts have shown that they are increasingly willingly to consider the use of social media and other forms of digital communication as an alternative method of service.

However, there has to be a “good reason” before the courts will allow alternative service. Previous examples of what the courts have accepted as “good reasons” include:

difficulty identifying the other party
In Blaney v Persons Unknown (unreported), Mr Blaney was seeking an injunction against an unknown person who was impersonating him on Mr Blaney’s blog using Twitter. There was no doubt that the respondent was actively using Twitter and as there was no way of easily identifying him beyond his Twitter handle, the High Court allowed service via Twitter.

difficulty serving an informal group
A university sought an injunction preventing a far-right group from trespassing on the university’s land. However, the group was not a recognised political group and had no office or organised infrastructure at which the papers could be served. The court allowed service of the papers via Twitter (as the group mainly used social media to organise their activities) as well as granting a further injunction which required one of the defendant’s to procure that the group’s (offshore) web hosting company posted the original injunction on the group’s website.

address for service unknown
In AKO Capital LLP & another v TFS Derivatives & others (unreported), it was believed that one of the defendants had left his last known address and so it was impossible to serve him in accordance with the CPR. The High Court permitted service of the claim form via Facebook on the grounds that it was possible to correctly identify the defendant from his profile picture and it could be established that the Facebook account was active (the defendant had recently accepted several friend requests).

attempts by the other side to evade service and any form of communication
Throughout the litigation, the defendant, Mr Whyte had attempted to evade service and any form of communication. The claimant were permitted to serve proceedings: (a) to Mr Whyte’s last known email address; (b) through Mr Whyte’s father who had been involved in the litigation; and (c) by leaving a voicemail on Mr Whyte’s mobile and sending him a text message to notify him of the hearing date, Ticketus LLP and another v Craig Thomas Whyte and others.

If you encounter difficulties serving documents on the other side, you should consider whether service can be effected by an alternative method. Remember, it is always better to seek the court’s permission before you serve by an alternative method rather than seeking retrospective permission which may be refused.