SERVICE OF CLAIM FORM BY WHATSAPP: A CASE IN POINT: SERVICE BY SOCIAL MEDIA AND EMAIL

In Gray v Hurley [2019] EWHC 1636 (QB) the court allowed service of the claim form by Whatsapp message.

THE CASE

The hearing was a dispute about jurisdiction.   The claimant issued proceedings and obtained an order for service on the defendant by Whatsapp. The defendant challenged the jurisdiction of the court and sought to set aside the order for alternative service and stay the proceedings.

The judgment found that the application had been valid. There is little discussion of the  issue of service by Whatsapp . The method of service does not appear to have been challenged.

OTHER EXAMPLES: SERVICE ON A WEBSITE

In Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB) the court allowed granted an application

“… giving the company permission to serve the Amended Claim Form, Particulars of Claim and “all further documents that may be required to be served during the course of these proceedings” by any of three means: by first class post to an address in Hitchin that appeared to belong to Mr Jackson’s daughter (“the Hitchin Address”); to the BT Email address; and via a section of the Website called “contact Bob”. The order made provision for the deemed date of service of the Claim Form and Particulars of Claim, depending on which method of service was adopted. “

BY EMAIL

Service by email was considered in Brett –v- Colchester Hospital University NHS Foundation Trust [2014] EWHC B17 (Costs) 

During an assessment of costs the claimant obtained a default costs certificate.  A costs lawyer had, earlier in the action, served a notice of change, by e-mail, indicating that the cost lawyer’s address was the address for service of the notice of commencement. However the claimant served the notice of commencement at the defendant’s solicitors address (not the cost lawyers) and subsequently entered a default costs certificate.

WAS THE DEFAULT COSTS CERTIFICATE REGULAR? FAILURE TO COMPLY WITH THE PRACTICE DIRECTION ON ELECTRONIC SERVICE

The defendant argued that it had given valid notice of change by email before the bill was served. The claimant had acted irregularly in serving at the solicitor’s address and not the cost lawyers; consequently the default cost certificate was irregular and should be set aside.   The claimant’s solicitors stated that they had never received the notice of change, (although they did accept that they had been having difficulties with their email system).

However, the claimant also argued that, service of the notice of change was not valid in any event. Notice of change was given by e-mail and, prior to service and the defendant never complied with Practice Direction 6A and asked whether service by electronic means was agreed.

SERVICE BY EMAIL CONSIDERED

The Master considered the rules relating to service.

“4. The breach of rules the claimant complains of is a breach of the service rule, Rule 6.20. It says that service by email must be in accordance with Practice Direction 6A. Practice Direction 6a, paragraph 4.2, says that a person intending to effect service by email must “first ask the party who is to be served whether there are any limitations to the recipient’s agreement” to accept service by email. It gives examples. Are there limitations as to the format in which documents are to be sent, or are there size limitations? It is accepted by both sides that, in this case, the defendant never asked any such questions of the claimant. 

5. The defendant’s riposte to that is that it has regularly served documents on the solicitors acting for this claimant and on solicitors in other cases, and no complaints about noncompliance with PD6A, para 4.2 have ever been raised before. The defendant’s agents (Acumension Ltd) are themselves willing to accept service by email and they have never received phone calls from anybody else of any other contact with anyone else enquiring what size limitations or what other limitations there may be on their agreement to accept such service. Service amongst those who are willing to accept service by email is commonly done these days without any such formality. The defendant says that the real problem here is not that the defendant did not check whether, on this occasion, service of notice of change by email was permissible. The source of the problem here is the problem the claimant’s solicitors were having with their email address.”

 THE DECISION: SERVICE BY EMAIL IN THIS CASE WAS VALID

It was held that the service of the notice of change by email was valid, and serving on the previous address for service was an irregularity therefore the cost certificate should be set aside:

“6. It seems to me that the service by email in this case was valid. The reason it had not got to the awareness of the claimant is something outside the defendant’s control and inside the claimant’s control. The fact that a telephone call pursuant to PD 6A, para 4.2 might have had the unintended benefit of notifying the Claimant’s solicitors of a forthcoming change of legal representative is not determinative. I do not think that such a phone call is a pre-requisite to service by email. I think PD 6A, para 4.2 is a recommendation of good practice only and a recommendation which has become a historic interest only. It dated back to a time when the court’s own preferred method of electronic delivery was, I think, WordPerfect, something which, at that time, few solicitors used as they had already moved on to Word. Since then, not only does everyone use Word, but everyone is using broadband also and so size limitations are not now a problem either. If PD 6A, para 4.2 has any continuing practical effect it would merely be to defeat mischief makers who want to send or receive emails on a system which nobody else can read or some similar inconvenience which amounts to an obvious abuse of service by email. That does not make it a pre-condition on everyone that these calls have to be made each time something is served by email”

HOWEVER REMEMBER BARTON -V- WRIGHT

Remember that the Supreme Court dismissed the claimant’s appeal in Barton -v- Wright Hassall [2018] UKSC 12.  Service by email on a solicitor who had not confirmed they would accept service was not good service