Message Received – Dispensing with Service

18 December 2019

In the recent case of Lonestar Communications Corp LLC v Kaye[1], the court dispensed with service of the claim form following numerous attempts by the Claimant via social media and the internet to notify the Defendant of the proceedings.

The Claimant claimed against five Defendants for conspiracy following alleged cyber-attacks on the Claimant’s business. The Claimant had made numerous unsuccessful attempts to serve the Second Defendant (D2), who was based in Israel, under the Hague Convention. The Claimant’s solicitors also sought to inform D2 of the proceedings through the internet and social media by:

  1. Contacting the Third and Fifth Defendants’ solicitors and asking them for the contact details of D2. The solicitors stated that they were not currently instructed by the Defendants.
  2. Messaging D2 on Facebook Messenger. Evidence demonstrated that the message was sent and was successfully received by D2. A further message was but not received because D2 had deleted his account.
  3. Sending two messages to D2 on photo-sharing platform Flickr. No response was received.
  4. Sending a letter to a company called AMG which, as a result of the ‘Panama Papers’ leak, appeared to have a link with D2. The letter was delivered but no response was received.
  5. Writing a letter to an Israeli company, which due to information provided on the D2’s personal website, suggested had a connection with D2. The Israeli company stated that it was not connected in any way with D2. D2’s website referring to that company was then taken down.
  6. Sending a message to D2 on LinkedIn asking to connect. No response was received.

Having therefore failed to effect service, the Claimant applied to dispense with service of the claim form and related documents.

Labelling the efforts of the Claimant’s solicitors as “heroic”, the court held that the “exceptional circumstances” necessary for dispensation of service to be granted had been established. The Claimant had not only correctly attempted to serve D2 under the Hague Convention, but had also used social media and the internet in such a way that D2 had to have known about the proceedings; it was therefore to be inferred that he was attempting to evade service, particularly as D2 was actively taking steps to make service difficult. D2 was also likely to be aware of the proceedings due to press coverage and document preservation notices sent to him by the other Defendants.

The court held that it was fair and just to make an order dispensing with service: the Claimant would suffer prejudice if the application was not granted as it would not be able to continue with its claim. By contrast, D2 would not suffer prejudice in light of his actions.

This decision highlights that the courts are willing to infer both that a Defendant is aware of proceedings and that they are evading service deliberately. Although not commonplace, as long as formal service has been attempted and “exceptional circumstances” can be established the Court will grant dispensation to serve. As to this, social media offers an effective alternative to parties struggling to serve documents on their opponent, enabling the court to find that parties have done all they can to effect service. The court has sent a strong message to recalcitrant parties; efforts to undermine a party’s ability to pursue its claim through these sorts of tactics will not be tolerated.

[1] [2019] EWHC 3008 (Comm)

Jack Foster Author
Jack Foster
Trainee Solicitor
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