The UK High Court’s recent permission to serve an injunction via Twitter may be a first, but it has respectable antecedents and the authority of the rules.
The relevant part of Rule 6.15 CPR says this:
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
(3) An application for an order under this rule –
(a) must be supported by evidence; and
(b) may be made without notice.
The practice direction to Rule 6 CPR has the heading Application for an order of service by an alternative method or at an alternative place. Paragraph 9.1 says that such an application –
must be supported by evidence stating —
(1) the reason why an order is sought;
(2) what alternative method or place is proposed, and
(3) why the applicant believes that the document is likely to reach the person to be served by the method or at the place proposed.
The examples in Paragraph 9.3 of the practice direction include “an application to serve by sending a SMS text message”. Twitter, of course, has most of the characteristics of SMS, but it is the principle which counts not the technology – have conventional methods been tried? the court will ask, and is it probable that the defendant will get the documents?
The point here is similar to one which I make about the disclosure rules — that however important it is to comply with the letter of the rules, they are all subject to the overriding objective and to the court’s general management powers and discretion. These authorise and, indeed, require the court to do what is right, as long as this does not actually conflict with a rule. Just as the discovery rules specifically urge proportionality, so the rules for service (as the extract above shows) specifically provide for circumstances in which compliance with the strict rules is not possible and where justice will be denied if discretion is not exercised.
In this case, one imagines that it was not difficult to show the court that the defendant was a regular Twitter user. The defendant’s existence was known only through the his or her tweets, and Twitter was the vehicle through which the alleged damage was being caused to the claimant. It would have been possible, no doubt, for the claimant to try and get information about the user from Twitter itself but this would have involved an application to a US court. That might, in any event, have led only part of the way, since Twitter would probably know only the e-mail address and IP address of its user, requiring the claimant to make a further court application directed to the user’s ISP.
The English court was obviously persuaded that the matter was sufficiently urgent to warrant this deviation from the standard rule and that it could be reasonably sure that notice of the injunction and proceedings would reach the defendant by this means.
A court order was recently served in Australia via FaceBook on the same basis.
A follow-up article Twitter-served court order a success claims blogger on Pinsent Masons’ Outlaw.com suggests that the claimant achieved his objective.