When can notification of proceedings be served using social media? Derek Jones, a Partner at Harrison Clark Rickerbys, comments following a recent ruling that Facebook could be used to effect notification of bankruptcy proceedings.
What was the background to the case?
In Re A Debtor (No 0274 of 2010) on 22 October 2014 District Judge Lethem, sitting in the County Court at Tunbridge Wells, made an order requiring a bankrupt to be summoned for examination under sections 366 and 367 of the Insolvency Act 1986. The applicant trustee in bankruptcy (Quantuma LLP) had previously sought to effect both personal and substituted service upon the debtor who had proved elusive.
What were the legal issues that the District Judge had to decide?
The judge was satisfied on the evidence before him that the debtor was a regular user of his Facebook account and granted leave to the applicant to notify the bankrupt of the terms of the order:
‘by means of an email and/or posting upon the Respondent’s Facebook account in the following terms: “…TAKE NOTICE that on the 22nd October 2014 the Court made an Order in connection with these proceedings which requires your personal attendance before the Judge at 42-46 London Road, Tunbridge Wells, Kent, TN1 1DP. For further details please telephone the Court office on 01892 700150…”‘
This is understood to be the first time that the use of social media has been extended by the courts to encompass insolvency proceedings in England and Wales.
This is a particularly important step for trustees in bankruptcy dealing with recalcitrant bankrupts who have failed to cooperate with either the official receiver or themselves.
Albeit only a first instance decision, it shows that where a debtor is active on social media the bankruptcy court has the power under rule 6.15 of the Civil Procedure Rules 1998 (CPR) to authorise the use of social media not only for the service of proceedings themselves but also for notifying a debtor that relevant orders have been made—whether or not the precise terms of the orders are disclosed.
Have there been any similar cases in the UK, and can we expect to see many more instances of service effected by way of social media?
In Blaney v Persons Unknown (October 2009) in the High Court, Mr Justice Lewison allowed a claimant to serve an injunction against an anonymous Twitter user by sending a direct message containing the link to the injunction. This is understood to be the first English case involving the use of any form of social media for the service of proceedings under CPR 6.15.
In another case, Hastings County Court reportedly granted permission for a court order to be served on the defendant via Facebook on or around 15 March 2011. This was in line with Blaney.
AKO Capital LLP and Master Fund Limited v TFS Derivatives and others involved a £1.3m claim for overpayments of commission. In February 2011 the High Court gave permission for a CPR, Pt 20 claim form and particulars of claim to be served by electronic means by attaching them in pdf format to a message sent via Facebook to an individual defendant. This was the first decision of the High Court that ordered service via Facebook.
Have there been cases in other jurisdictions?
In Citigroup Property Limited v Weerakoon  QDC 174 (Queensland District Court—16 April 2008), the judge refused an application for substituted service of the statement of claim on a defendant by email to his Facebook page because of the ‘uncertainty’ of Facebook, the fact that anyone could 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 accepted that it ‘may well be’.
In Axe Market Gardens Limited v Axe (2008), leave for service of court documents via Facebook on an individual whose whereabouts were unknown was granted. Newspaper advertising could not be effectively targeted. The court accepted that it was clear that the defendants had undertaken banking transactions online.
In Knott v Sutherland (2009) service was allowed on an individual defendant by sending notice to the defendant’s Facebook page by way of substituted service.
In MKM Capital Property Limited v Corbo and Poyser (Australian Capital Territory Supreme Court, No SC 608 of 2008) the defendants failed to keep up repayments on a loan and the lender obtained a default judgment. The rules required the default judgment, and associated order for possession, to be served personally upon the defendants but they could not be found. The claimants lawyers discovered the defendants’ Facebook profiles which confirmed their dates of birth, email addresses and friend lists. The co-defendants were friends with each other.
The court was persuaded to order that:
‘Service of the Default Judgment be effected on both of the Defendants by sending a private message via computer to the Facebook page of the First and Second Defendants and informing the Defendants of the entry and terms of the Default Judgment.’
In a case in Ireland, reported on 4 June 2012, Mr Justice Peart sitting in the Irish High Court, granted permission to a plaintiff to serve proceedings on a non-resident defendant by serving them by way of private message on the defendant’s Facebook page. The defendant had left the jurisdiction and the plaintiff was then able to serve him. The judge was satisfied on the basis of an affidavit submitted by the plaintiff that exhaustive efforts had been made to locate the defendant. The plaintiff was also able to satisfy the court that the Facebook page in question was both genuine and also used regularly by the defendant.
Re the Irish Education Research Institute in Liquidation, a decision of the Irish High Court on 10 September 2014, paved the way for service of proceedings via LinkedIn. The judge made an order providing for papers to be served by furnishing a message to the relevant party detailing the case and attaching a link to the URL containing the papers using the technical features available on LinkedIn—the liquidator would be able to determine that the message had been delivered and indeed that it had been read.
In CMC Woodworking Machinery (Property) Ltd v Pieter Odendaal Kitchens (Unreported case No. 6846/2006, 3 August 2012), Mr Justice Steyn sitting in the KwaZulu-Natal High Court in Durban, made an order for substituted service for a notice of set-down and pre-trial directions on the respondents, the defendant in the main action, via a message on Facebook in addition to the notice being published in the local paper.
The judge said:
‘Changes in the technology of communication have increased exponentially and it is therefore not unreasonable to expect the law to recognise such changes and accommodate [them]…Courts, however, have been somewhat hesitant to acknowledge and adapt to all the aforesaid changes and this should be understood in the context that Courts adhere to established procedures in order to promote legal certainty and justice.’
In the US, in Fortunato v Chase Bank USA, na 11 CIV.6608 (JFK), on 7 June 2012 the third-party plaintiff sought court approval from the US District Court for the Southern District of New York, to seek alternative service including by email, a Facebook message and publication in the local press. While allowing service by publication in the local press, the District Court refused to allow service via email or Facebook concluding that the plaintiff had not set forth enough facts to give a sufficient degree of certainty that the third-party defendant actually maintained the email address or the Facebook account. The court expressed concerns that ‘anyone can make a Facebook profile using real, fake or incomplete information’.
Service by social media has also now raised its head in the family courts (at least in the US). In re Adoption of KPMA OKLA Lexis 85, a majority of the Oklahoma Supreme Court found, on 14 October 2014, that a Facebook message would be legally insufficient notice.
What practical lessons can practitioners take away from the case?
The practical lesson from this is that where there is a need to apply for alternative service then social media should always be considered where there is evidence to show active use of it by the party to be served.
Interviewed by Nicola Laver.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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First published on LexisPSL Restructuring and Insolvency