Is “sliding into someone’s DMs” appropriate service? What about sending a claim form via WhatsApp when the recipient is located abroad? How about sending a message on Telegram when that message instantly disappears?
In cross-border disputes in today’s technological world, these questions increasingly arise in practice. Where defendants are located overseas, traditional routes to service such as service via the Hague Convention or service through foreign governments, judicial authorities and British Consular authorities can be slow and, in urgent cases, ineffective. Judges in the UK courts often take a flexible and sensible approach to service.
So, what do you do if you are looking to serve on defendants that are overseas and need to do so urgently? This note sets out a practical guide to obtaining permission for, and effecting service by, alternative means.
1. Understand the permissions required
- Service out of the jurisdiction (CPR 6.36); and
- Service by alternative means (CPR 6.15 / 6.27).
As a starting point, where a defendant is located outside of England and Wales, a party will generally need the court’s permission under CPR 6.36 to serve documents for UK proceedings abroad, unless one of the specific exceptions in CPR 6.32–6.33 applies. In practice, parties tend to apply for permission to serve out of the jurisdiction and permission to serve via alternative means at the same time.
2. Identify the “good reason”
In order to persuade the court to give an order for alternative service, claimants must demonstrate that there is a “good reason” to depart from standard service methods (see Abela v Baadarani [2013] UKSC 44). Claimants are unlikely to succeed unless they can identify clear and persuasive reasons why conventional methods of service are not suitable in the circumstances. Typical grounds for departing from standard service methods include, but are not limited to, urgency (for example, in injunction proceedings, where the defendants are located in a Hague Convention state and service through the Hague Convention is likely to take months), delay inherent in conventional routes, and practical difficulties in contacting or locating defendants.
3. Identify the right method of service
Once a claimant has established a good reason, they must demonstrate to the court that the proposed alternative methods are likely to bring the documents to the defendant’s attention. The court will expect a fact-specific approach. The question is not what is theoretically possible, but what is most likely to reach the defendant.
The UK Courts have in recent years permitted service through a wide range of methods, including via social media and by more novel means such as service via non-fungible tokens (NFTs) deposited into crypto wallets (see D’Aloia v Persons Unknown [2022] EWHC 1723 (Ch)).
In identifying appropriate methods of service, the starting point is to consider what is already known about the defendant(s). This will often include whether there has been prior communication with the defendant and, if so, the channels through which that communication took place and how recently it occurred.
It is also important to consider what public source information is available, for example through corporate registers (such as Companies House or foreign equivalents), contractual documents, or other records which may contain addresses or contact details.
Social media can also be a valuable source of evidence, particularly where recent activity can be used to demonstrate that an account is active or provide an indication of the defendant’s current location. In practice, it is often useful to gather supporting material (for example, screenshots of social media, or the most recent email the defendant has sent from a proposed email address) to demonstrate to the court both the existence of an account and evidence of recent use.
Applications are strongest where they include specific evidence demonstrating that the method exists and that the defendant is actively using it. There is rarely a single “right” method of service. The court is generally more persuaded where a combination of methods is proposed, rather than reliance on a single route (even if this does mean a more cumbersome service exercise for the claimant).
4. Drafting the order
The draft order is a critical part of any application for alternative service and needs to be provided to the court at the point of making the application. It needs to be both clear and workable as it will dictate exactly how service is to be carried out and when it will be treated as effective.
At a minimum, the order should specify, for each defendant, the methods of service that are permitted and the steps that must be taken to effect service. Where different defendants have different contact details or communication channels, those should be reflected individually rather than adopting a “one size fits all” approach. The order should also make clear when service is deemed effective. In cases involving multiple steps, it is common to provide that service is only completed once all specified steps have been taken.
Each method of service should be spelt out precisely, with no ambiguity as to include more than one permitted method of service for each defendant. This not only increases the likelihood that the documents will come to the defendant’s attention but also provides protection in the event that one method proves ineffective.
Confidentiality should also be considered. If serving through a publicly accessible platform (for example via NFTs), consideration should be given to seeking permission from the court to make redactions or using a password-protected link, so service does not inadvertently publicise confidential or sensitive material.
5. Execute service precisely (and keep a detailed record)
Once you have obtained permission for alternative service, it is important that service is carried out strictly in accordance with the order. This means ensuring that every required step is completed for each defendant, and you keep a record of steps taken so you can show the court service has indeed been effected.
Careful planning is often required, and the approach should be tailored depending on the service method.
Our top tips based on our experience are:
- Allow sufficient time for preparing and dispatching documents, particularly when hard copy service (e.g. courier or process server) is required, as printing can take time. It will likely be quicker to print at the place of service.
- A courier should be given clear instructions, including (i) the full address and any anticipated difficulties with accessing the address and (ii) how to proceed if the recipient is absent (e.g. where to leave documents, how to take proper photos confirming delivery etc.).
- Consider whether documents being served electronically should be sent in a message containing a secure link and whether access to that link can be monitored so that you can show the court they have been accessed by the recipient.
- If the recipient does not speak English, the documents served as well as any cover messages will need to be translated. Machine translation is usually acceptable, but you should factor in time for these to be prepared.
- Keep a clear, contemporaneous record of all steps taken to effect service and obtain evidence of delivery, such as delivery confirmations, screenshots of messages with timestamps and read receipts, or photographic proof.
- For Telegram:
a) ensure you screenshot when you send the message/it is received, as the recipient can easily delete it, something they are likely to do if they are trying to evade service;
b) recipients can block you (which often can be identified if the recipient’s profile picture is no longer visible to you and the “last online” status changed to “recently”). If this occurs, any further service should be made from an alternative sender account; and
c) advanced users may set up privacy restrictions which make sending a message to them impossible. - For Facebook and Instagram:
a) you will need an account you are happy to send the documents from;
b) the Instagram character limit for messages is prohibitive (<1000 characters), but you can drop a PDF of documents into the message; and
c) there can be restrictions on the number of messages you can send if the sending account is not followed by the recipient account, so one message including an accessible link containing the relevant documents may be the best approach.
Alternative service can provide a pragmatic solution where conventional methods are too slow, uncertain or impractical. However, a successful application for permission to do so requires clear evidence of why alternative service is justified, careful selection of methods likely to bring the proceedings to the defendant’s attention, and a precise and workable order. Once permission is granted, strict compliance and a comprehensive evidential record are essential. In urgent cross-border disputes, considering these issues at an early stage can avoid delay, reduce the scope for challenge and ensure that service supports, rather than undermines, a wider litigation strategy.
If you would like to discuss the contents of this article further, please contact Anna Maxwell.