SERVICE OF CLAIM FORM BY EMAIL ALLOWED: THE SAFEGUARDS TO RESPONDENTS TO WITHOUT NOTICE APPLICATIONS.

The case and issues in Linklaters LLP -v- Mellish [2019] EWHC 177 (QB) have already made the headlines.   The procedural aspects of the decision are also of interest. Firstly Mr Justice Warby made an order allowing service of the claim form and accompanying documentation by email. Secondly the judgment sets out the safeguards the courts put in place when making injunctions, even for a short period.

THE CASE

The claimant was seeking an injunction against a former employee on the grounds that the employee was likely to terms of his contract and disclose confidential information. The court granted a without notice injunction on the 31st January 2019. The return date for the hearing is the 11th February 2019.

THE JUDGMENT ON THE  PROCEDURAL ISSUES

17. The defendant was not present or represented at the hearing. Nor did he instruct any lawyer, or send anyone else to represent his interests. Nor did he submit any evidence or written representations. The Court is always wary of granting injunctions against absent parties. That includes, in particular, injunctions which affect free speech – protected by the Convention right to freedom of expression under Article 10. Section 12(2) of the Human Rights Act 1998 (HRA) prohibits a court from granting such an injunction unless it is satisfied either (a) that the applicant has taken all practicable steps to notify the respondent or (b) that there are compelling reasons why the respondent should not be notified. No such compelling reasons were suggested.  But I was satisfied that all practicable steps have been taken to notify the defendant.
18.Normally, that should be done by means of an application notice. This can be dispensed with in cases of “exceptional urgency” (CPR 23.4(2) and PD23A 3) It was initially suggested that this was such a case. The claimants pointed out that the defendant had received written notice and all the application papers. I would not have accepted the suggestion that there was exceptional urgency here. But the claimants had wisely reconsidered their position, so that by the time of the hearing there was an application notice before me.
19. Communication with the defendant had all been done by email, the claimants’ evidence being that they did not know where the defendant is currently resident. He might have been in London, having settled in Belgravia when he took the job with the claimants. It was possible that he was in Australia. That seemed unlikely given the timing of some of the communications. The better view was that he was probably in France. Given the possible locations of the defendant, I had to consider the question of jurisdiction, and the method of service outside the jurisdiction if service abroad was legitimate.
20. I was satisfied that, if he was in France, another EU jurisdiction, service could be effected without the Court’s permission, on the basis of the exclusive jurisdiction clause, pursuant to the Judgments Regulation and CPR 6.33(2)(b)(v). If, by chance, the defendant was in Australia or another non-EU country, and permission was required for service abroad, that could be granted because the claims pass through the gateways in 6BPD 3.1(6)(a), (c) and (d) (claims in relation to contracts) and, if necessary, 3.1(21)(a) and/or (b) (claims for breach of confidence or misuse of private information). The detriment threatened would be suffered within the jurisdiction. On the merits, I was satisfied that the relevant threshold requirements were met.
21. Given the claimants’ ignorance of the defendant’s whereabouts, I granted permission, pursuant to CPR 6.15 and 6.27, for service of the claim form and other documents in the case to be effected by an alternative method, namely email in combination with text messages to alert the defendant to the existence of the emails. I was satisfied that this was legitimate, notwithstanding the limits on the permissible methods of service abroad that are laid down by CPR 6.40. Email is not a method of service allowed under French law, so I am told. But, as Mr Caldecott pointed out, the prohibition in r 6.40(4) relates to methods of service that are “contrary to the law of the country where the claim form or other document is to be served”. There is nothing to suggest that French or for that matter Australian law prohibits the service of English proceedings by email or text. And CPR 6.15 applies to authorise service “by a method or at a place not otherwise permitted” Abela v Baadarani [2013] UKSC 44 [2013] 1 WLR 2043 [24].
22. When deciding to proceed on short notice I also bore in mind that an absent defendant has three important safeguards. The first is that a claimant seeking an injunction against such a defendant owes the Court a duty to make full and frank disclosure of any matter of fact or law that is material to the decision the Court is being asked to make. If that duty is not performed the injunction may be discharged, with appropriate costs orders as well as the possibility of compensation for the respondent. The skeleton argument for the claimants and the witness statements of Mr Bennett expressly acknowledge this, and that the duty includes drawing the court’s attention to any relevant public domain material, and to any facts which might be said to support a public interest defence. I was satisfied that the claimants had conscientiously sought to fulfil this duty. The second safeguard is the requirement that the applicant’s lawyers make a note of the hearing, and provide it to the respondent. Thirdly, there should always be a judgment explaining the Court’s reasoning.