The Court may dispense with service of a claim form in exceptional circumstances (CPR 6.16(1)).  In Lonestar Communications Corp LLC v Daniel Kaye and Others¹, the court considered whether the steps taken by the claimants to serve one defendant were exceptional so as to allow it to dispense with service.

The facts

The claimant had issued a claim against five defendants for damages resulting from the tort of conspiracy and unlawful interferences with business arising out of alleged cyberattacks on its business.

The application that was before the court related to service of the claim form on the second defendant, Mr Marziano.  Following an unsuccessful attempt to serve Mr Marziano in Israel through the Hague Convention, the claimant’s solicitors made six attempts to inform Mr Marziano of the proceedings:

• Contact details for Mr Marziano were sought from the solicitors acting for the third and fifth defendants on the basis that Mr Marziano was (or had been) CEO of both those defendant companies.
   
  As a result of these enquiries, the claimant’s solicitors wrote to DLA who had acted for Mr Marziano in other proceedings requesting contact details.  DLA first replied denying that they had instructions with regard to this matter (but made no denial of instructions with regard to other matters) and following a further letter from the claimant’s solicitors, DLA then replied that they were no longer instructed in relation to other matters.
• A message was sent by the claimant’s solicitors by Facebook Messenger to Mr Marziano.  Evidence showed that the message was sent and that it reached its target.  Three months later, a further message was sent by the claimant’s solicitors using Facebook Messenger but that attempt failed.
• The claimant’s solicitors sent two messages via Flickr (a Flickr message sends the full message to the user’s email) informing Mr Marziano of the proceedings.  No response was received.
• The leak of the Panama papers suggested that Mr Marziano had a connection with a company called AMG which had an address in Anguilla.  A letter was sent to AMG and confirmation was obtained that the letter arrived in Anguilla.  Again, no response was received.
• Mr Marziano had a personal website which referred to his connection with a company called Sofixtech.  A letter was sent to Sofixtech (and evidence of delivery was obtained).  Sofixtech returned the documents saying that it did not act for Mr Marziano.  It was then discovered that whilst Mr Marziano’s website itself was still live, content including that which mentioned Sofixtech, had been removed from the website.
• The claimant’s solicitors sent Mr Marziano a request to be connected on LinkedIn.  That request failed.

The decision

Was the application to dispense with service made out?

Yes: on the basis of the failure to respond to the Facebook messages and the likely termination of that account together with the removal of the content from Mr Marziano’s personal website, the Judge concluded that Mr Marziano was not only aware of the proceedings but he was also doing his best to evade service.

Consideration was also given to the fact that there may well have been other reasons why Mr Marziano was aware of the proceedings: solicitors for the third and fifth defendants had sent him document preservation notices which would have informed him of these proceedings; Norton Rose had corresponded with him using WhatsApp when it sought permission to provide his Israeli telephone number to the claimant; and also there had been press reports of the proceedings.

Were there exceptional circumstances?

Yes: a proper attempt had been made to serve Mr Marziano via the Hague Convention, but that had failed. The Judge said that the claimant’s solicitors had made “heroic” efforts using the internet and social media to establish contact with Mr Marziano and inform him of the proceedings. The Judge decided that the court could infer that Mr Marziano was aware of the proceedings and was taking active steps to evade service.

Analysis

It is hard to imagine what further steps the claimant should have taken to draw the proceedings to the defendant’s attention. Following failure of the Hague Convention attempt at service, the claimant’s solicitors proactively pursued no fewer than six different ways of contacting Mr Marziano, a number of which used social media.  It is interesting to note the inferences that the court was prepared to draw from the failure of some of those service attempts:  as a result of the failure of the second attempt of contact via Facebook Messenger, that Mr Marziano had terminated his Facebook messenger account; and the removal of content from Mr Marziano’s personal website once Sofixtech had been written to.

Interestingly, the judgment makes no reference to the interplay between orders dispensing with service and the principle of comity where, (as here) a Hague Convention Contracting State has indicated it is opposed to service otherwise than through its designated authority. The claimant’s first attempt to serve Mr Marziano via the Hague Convention was described to have “failed” but no further details are available. In Punjab National Bank v Boris Shipping & Ors, the court considered a similar situation. In that case it overturned an order for alternative service, partly because the country in which it was trying to serve proceedings had objected to direct service under the Hague Convention. There is also no mention, in this case, of the fact that the Hague Convention itself provides a remedy under Article 15 for service to be deemed to have been effected where all appropriate steps have been taken and a sufficient period of time has elapsed. More information on this issue can be found in our earlier article: No shortcuts to service under the Hague Convention: Punjab National Bank v Boris Shipping & Ors.

Practical tips on service

When considering an application under CPR 6.16 for an order to dispense with service of the claim form² bear in mind the following:

• The court has power to grant prospective as well as retrospective service dispensing orders.
• The Court will only grant the application in “exceptional circumstances”.  Whilst every case is fact specific, the Court is very likely to want to see more than a failure in the formal service route.
• Where the Hague Convention applies and the contracting state has actively opposed direct service, consider carefully whether “exceptional circumstances” apply and whether or not it would be preferable to apply under Article 15 of the Hague Convention.
• Consider whether you wish to apply for an order dispensing with service or for an order for alternative service³.
   
  In this case, an application was made in the alternative for an order for alternative service both retrospectively and prospectively.  As the forms of alternative service involved the steps which had already been taken i.e. Facebook, Flickr and letters to AMG, the Judge concluded that as no further method of bringing the proceedings to Mr Marziano’s attention formed the subject matter of the alternative service application, it was just, fair and appropriate to make an order under CPR 6.16 and 6.28.
• Note any reaction from the defendant, even if not direct: in this case the court was invited to, and did draw an inference from the fact that between the first and second contact via Facebook Messenger, the defendant’s Facebook Messenger account was terminated (the inference being that Mr Marziano had in fact deleted his account after receiving the first message).
• Ensure that any documents sent to notify the defendant of the proceedings are signed for/proof of delivery is obtained.
• Consider whether the claimant is willing to undertake to the court to continue to take steps to inform the defendant of the proceedings (which the claimant did in this case).
• Is there prejudice to the defendant in dispensing with service?  In this case, the Judge decided that in circumstances where the defendant was aware of the proceedings and was taking steps to evade service, there could be no prejudice to him in making the order.
• Remember that any order made under CPR 6.16 can be challenged: if the application is made without notice it can be set aside under CPR 23.10, more generally it can be set aside under CPR 3.1(7) or by way of appeal under CPR 52.