Service by SMS

Twitter, Facebook, Snapchat, WhatsApp and the trusty SMS. Sending a text is often the most convenient way to communicate these days, from declaring your love for someone to breaking up with them (harsh but not unheard of). However, it is unusual to think of the court allowing official documents to be served in this manner.

This case, involving a potentially scandalous love affair, is an example of the High Court using common sense and flexibility to allow documents to be served by text. For defendants who think they can avoid service simply because their address is unknown, this is no LOL matter.

The facts

The case concerns proceedings in the High Court for misuse of private information and harassment.

The claimant is a successful businessman and is married. He had an affair with a woman (the first defendant), who subsequently demanded money from the businessman, and he refused to pay.

The claimant later received a telephone call from a third party (the second defendant) who claimed to be a journalist and suggested that he had information about the affair that he intended to publish if he was not paid.

A figure of £75,000 was settled on and they agreed to meet on 28 March 2018 to complete the payment.

In the meantime the businessman filed a without notice application for an interim non-disclosure and anti-harassment injunction against both the journalist and the woman he had an affair with.

At the time of the application, the identity of the journalist was unknown, and the only contact information available was his mobile telephone number. If the application was granted, the businessman intended to serve the injunction to the journalist at the meeting on 28 March 2018.

Mr Justice Nicklin granted an interim non-disclosure and anti-harassment injunction and stated that if they were unable to serve the injunction in person on 28 March 2018, a service of the injunction by text message was permissible as “the only practical alternative means presently available to the businessman”.

Our thoughts

• Rather than incurring the cost of a trace agent, parties could consider whether it might be more cost effective to ask the court to permit an alternative method of service of documents where it is necessary and practical to do so.
• This may be a useful tool for creditors pursuing elusive debtors and parties seeking to take action against another party operating online, where the option to serve personally or by post is not always available and the party has not indicated that it is willing to accept service by electronic means.
• Where possible, parties should plan ahead and include the request as part of the overlying application or relevant hearing to avoid payment of a separate application fee.
• Parties will still need to be aware of the requirements they will need to satisfy if they are making an application to serve by an alternative method. (PD 6A.9).

For further information, help or advice from our Dispute Resolution team contact Henry Mullen on [email protected] or 0191 211 7894