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The case of LONESTAR COMMUNICATIONS CORP LLC v KAYE 2019 EWHC 3008 was heard in November 2019 in the High Court and involved an application by the claimant for an order that it may dispense with service of the claim form and related documents on the second defendant. The Court decided that an order dispensing with service could, and would, be made given the exceptional circumstances in which the claimant found itself, having made six attempts at service with no success.

The six attempts made at service were as follows:

1. Service on the defendant in Israel through Hague Convention channels, which failed.

2. Message by Facebook Messenger which evidence showed had reached its target, the Facebook account subsequently being removed.

3. Service through a Flickr account (an image and video hosting service) which produced no response.

4. Service by post to an address in Anguilla revealed in the Panama Papers, to which there was no response.

5. Service by post at an address shown on the defendant’s personal website. The letter was returned and the contents of the website subsequently removed.

6. A request to be connected to the defendant through LinkedIn, the evidence showing that the defendant had received the request but had declined it.

The claimant submitted that the failure to respond to Facebook messages and the removal of the defendant’s personal website indicated that the defendant was both aware of proceedings and attempting to evade service.

The civil procedure rules provide the following in relation to applications to dispense with service of a claim form:

Rule 6.16 - “(1) The court may dispense with service of a claim form in exceptional circumstances.

(2) An application for an order to dispense with service may be made at any time and –

(a) must be supported by evidence; and

(b) may be made without notice.”

The Judge agreed with counsel for the claimant that there was evidence the defendant was aware of proceedings and was attempting to evade service. He said:

“The first question is whether or not there are exceptional circumstances. It seems to me that there are. This is a case where a proper attempt has been made to serve in Israel using the Hague Convention channels which has failed. Thereafter, the claimant’s solicitors have made heroic efforts using the internet and social media to establish contact with the second defendant and inform him of these proceedings. Thirdly, the court can infer, as I have already indicated, that the second defendant is aware of these proceedings and is taking active steps to evade service by taking down his personal website and by closing his Facebook Messenger account. Those appear to me, in the context of this rule and this application, to be exceptional circumstances.”

The Order dispensing with service was made. The judgment reasoned that the claimant would suffer prejudice if the order was not made as it would be prevented from bringing its claim. No prejudice would be suffered by the defendant in circumstances where it appears he was well aware of the proceedings and was taking steps to evade service.

It is worth noting that the Court took a modern approach to the matter of service in these exceptional circumstances and welcomed the claimant’s attempts at using social media to inform the defendant of proceedings. However, the conventional methods are still to be utilised first. Practically:

a) it will be prudent to evidence that conventional means have been exhausted before resorting to alternative methods of service; and

b) for defendants, the act of deleting social media accounts after receipt of documents may serve to evidence receipt and an attempt to evade service.