We’re all used to seeing stories in the papers about the social media networking site Facebook’s role in the end of relationships (see eg ‘Facebook a top cause of relationship trouble’, and ‘Facebook cited in a third of splits’). The opportunities offered by the internet to connect with people we used to know, or new people we’d like to get to know, are unparalleled by anything available to previous generations and are often blamed for having a part in the general rise in divorce rates over the last five or ten years. This week, however, Facebook has been in the legal news for a different reason. A High Court judge has ruled that the website could be used to serve court proceedings on a defendant whose physical whereabouts were unknown (see here).
The decision was made in a commercial case concerning an alleged overpayment of commission to brokers, which the investment managers who employed them are seeking to recover. They do not know where one of the employee brokers is, and since proceedings are not valid unless they have been properly served on the defendant to ensure he knows of their existence, the claimants in this case had a problem. What they did know was that the defendant had a Facebook account that was still active, so the judge gave his permission for the proceedings to be served that way.
As the solicitor in the case commented, we live in a society that is more mobile than ever before and people move around cities, countries and continents very easily. The traditional court method of service of proceedings at the defendant’s (or respondent’s), last known address is not always sufficient to ensure that he or she knows about the court hearings and has an opportunity to participate in them. When people’s email addresses and social media accounts move with them, it seems makes sense that the courts will feel comfortable giving permission for proceedings to be served this way if necessary.
It is sometimes difficult to locate a husband, wife, civil partner, father or mother in family proceedings too. Usually, a divorce or dissolution petition or other family court documents will be served by first class post to the respondent’s last known address, either by the court or by the applicant’s solicitor. If the applicant or his solicitor serves the papers, in most cases the rules now require that a ‘certificate of service’ setting out how that was done is available to the court before the next hearing. The court is very keen to see that proceedings are validly served, as it is a fundamental principle of justice that every person should be given the opportunity to participate in proceedings affecting them.
If postal service fails, it is possible to arrange personal service by an investigation agent or by the court bailiff, but this may be particularly difficult if there are no details of a workplace or the whereabouts of family members, or if the respondent is abroad. If these methods have been tried and failed, it is possible to apply for ‘substituted service’, eg by placing an advertisement in a local or national newspaper. If it can be proved that the respondent received the documents, service can be deemed; in extreme cases, the court will dispense with service altogether, but this is rare.
This case gives the first indication from the High Court that the law will consider service by social media as a substitute if postal and personal service have not worked. It remains to be seen how quickly judges in the family courts will embrace this new development, but we do believe that they will, and that it makes sense to do so. Social media are an increasing part of all of our lives, and are a useful communication line to those who travel frequently and widely and may otherwise fail to receive notification of a court hearing, or who may wish to evade it in the hope of derailing proceedings. We suspect social media will become an increasingly important part of the court’s service armoury, and welcome this advance. Let us know what you think.