Member Article

Service of legal documents by Facebook?

With Watson Burton LLP Law Firm

Is it possible that the English courts will allow service of legal documents by Facebook? The Court in Australia has already done so (MKM Capital Property Limited v Corbo and Poyser (No. SC 608 of 2008)).

The facts of the Australian case were that the defendants failed to keep up with their mortgage repayments and were sued by their mortgage provider. The defendants did not defend the action at court and the claimant was awarded judgment for the loan amount and possession of the defendants’ house. However, following the judgment, the claimant was unable to locate the defendants to serve the order upon them.

The claimants managed to find the defendants’ respective Facebook accounts. Armed with that information, the claimant applied to the court for permission to serve the judgment by Facebook. The judge gave permission to do so and amended the judgment accordingly.

Service by Facebook would certainly be a useful tool for English claimants who are unable to commence proceedings simply because they are unable to locate a physical address for the defendants. In view of the decision in MKM Capital Property Limited, is it likely that the English courts will permit service of legal documents by Facebook?

Where a legal document is to be served by electronic means, such as fax, those electronic means are only permitted where the party has indicated that it is willing to accept such service and has given the fax number, email address or other electronic identification to which it must be sent. Therefore, service by Facebook will not be permitted unless the party has expressly confirmed that he or she is willing to accept service by Facebook. (Civil Procedure Rules for England and Wales (“CPR”) Part 6).

The importance of service is that the party actually sees the documents. With normal postal service, providing that the documents are sent to the correct address, service is usually deemed to have taken place within 2 days of posting regardless of the fact whether or not the defendant opened the envelope or threw the documents away without reading them.

With Facebook, however, a claimant may be able to argue that, if a court allows service by Facebook, it will be possible to demonstrate that the defendant has seen the documents if the defendant has posted information on his / her Facebook account following service of the documents. That said, the defendant could have arguments to say that he / she did not actually receive the documents due to technical limitations of the device that the Facebook account was accessed from.

If a claimant is to stand any chance of obtaining an order for alternative service by Facebook, it will have to demonstrate as an absolute minimum that Facebook is the only way of contacting the defendant and / or the defendant is deliberately avoiding service.

If you have any comments or questions about this article or any commercial litigation matter, please contact David Hankin of Watson Burton LLP at david.hankin@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .