Cross-border criminal justice post-Brexit – Operation Yellowhammer
Potential claimants should be aware that the Court’s power to make an order for alternative service goes much further than simply allowing service by email. In certain circumstances, where there are no other practical options available, this can include unconventional methods of service such as text message, voicemail and social media.
The recent anonymised case of NPV v QEL and another  EWHC 703 (QB) is a good example. In this case the High Court allowed service of an interim injunction by text message.
The claimant (“C”) is a successful married businessman. In 2017, C had a brief relationship with the defendant (“D”). D became unemployed and C provided her with financial support. However, D’s demands increased and she ultimately threatened him with exposure unless he paid her a substantial sum of money.
A third party (“D2”) became involved. D2 called C claiming to be a journalist and threatened to publically expose the relationship. C believed that D2 was someone connected with D who was being used to apply extra pressure. C arranged a meeting with D2 for the day after the injunction hearing, ostensibly to hand over a large amount of money to D2. C actually intended to serve D2 with a harassment injunction at the meeting.
At the time of the application, the only contact information that C had for D2 was a telephone number. The judge permitted service of the injunction on D2 by text message on the basis that, if the meeting scheduled for the following day did not take place, this was “the only practical alternative means presently available” to C.
This is just the latest in an increasingly long line of decisions where the High Court has been willing to permit service via unconventional means.
In 2009, in Blaney v Persons Unknown, Mr Justice Lewison permitted an injunction to be served via Twitter. In that case the defendant was only known by his Twitter-handle. Three years later, Mr Justice Teare permitted service via Facebook in AKO Capital LLP & another v TFS Derivatives & others in circumstances where it was difficult to locate one of the parties involved. The claimants were able to show that a particular Facebook account did belong to the defendant and that it was active and frequently accessed by him. Consequently, the judge ordered that documents could be sent as PDF attachments to a private Facebook message.
We were involved in a recent case where a High Court judge permitted service of a Claim Form, Particulars of Claim and a search order on an individual defendant by various methods including voicemail, text message and Whatsapp. The judge in that case simply ordered the claimant to inform the defendant where he could find the materials served which could, but did not have to, include sending a link to a secure file sharing website.
Clearly, a claimant cannot expect the Court to grant alternative service as a shortcut where ‘regular’ methods of service are available. However, NPV v QEL is a useful reminder that the Court is willing to take a pragmatic approach to service where there are no practical alternatives.
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