The Americas / Popular Social Media Tools and the Law of Civil Procedure by Brianna Brantley, Nevis
In the recent decision of the English High Court (Edwin Johnson J) in Argyle Rose Limited et al v Asmah Naaz et al  EWHC 2403 (Ch) the Court permitted service of a world-wide freezing order and proprietary injunction by the popularly used instant messaging service WhatsApp.
This case involved the alleged diversion of the Applicant companies’ funds by a dishonest business associate whereby that associate paid such funds into accounts in the United Kingdom and Bulgaria. At the root of the dispute was the alleged misuse of confidential and proprietary information to divert profits away from the Applicant company.
The Applicants sought and obtained inter alia a without notice proprietary injunction on the basis that the diverted funds could be traced and so were impressed with a constructive trust in favour of the Applicants. This is useful for practitioners as the proprietary injunction, unlike the more commonly known freezing order, does not require the Claimant/Applicant to show a risk that the assets will be dissipated unless restrained.
Since one of the Respondents was outside the United Kingdom, it was critical and urgent that said Respondent was served to preserve the efficacy of the Order granted by the English court. Service out of the jurisdiction was therefore necessary and the Applicants successfully argued that service out of the Order should and could be effected by WhatsApp.
The Court confirmed the test for service out of the jurisdiction:
1. Do the English courts have jurisdiction over the intended causes of action?
2. If the answer to the jurisdictional issue is “Yes” then the Claimant must satisfy the 3 requirements of the procedural rules for service out:
(a) Is there a serious issue to be tried on the merits?
(b) Is there a good arguable case that each claim falls within one of the gateways set out in the English Civil Procedure Rules (3(1) of CPR PD6B)?
(c) Is England and Wales the proper place to bring the relevant claim?
The Court was satisfied that the test for service out of the jurisdiction was satisfied and turned then to the question of whether service by an alternative form was permissible.
In this regard the Court cited with approval the reasoning of Pelling J in Fetch.ai Limited v Persons Unknown Category A and Others  EWHC 2254 (Comm). At page 46 of that judgment Pelling J confirmed that before an alternative form of service could be considered the Court must be satisfied that there are “special or exceptional circumstances” for departing from the machinery outlined in the Hague Convention for service. Pelling J went on to rule that:
“There is, however, an increasing body of case law in which various judges of the Commercial Court have held in various terms that orders which involve either prohibitory injunctions or mandatory orders (including in particular, freezing orders and the like) should be served by alternative means if that is the only means by which the orders can be drawn speedily to the attention of the respondent concerned because, if the alternative is service by means which will take weeks and perhaps months to satisfy, then the orders which are made and the reasons for the making of those orders will be defeated.” [Emphasis added]
The test must then be that the Claimant/Applicant seeking alternative service must show special or exceptional circumstances and that special or exceptional circumstances can be shown if that alternative service is the only means to draw the orders speedily to the Respondent’s attention. Where regular modalities of service would lead to delay and such delay would defeat the purpose of the order, the Court would and should properly consider alternative forms of service. It is apparent that this is a common sense and practical approach to ensure that the Court’s orders are not rendered otiose. A similar approach has been taken in the Eastern Caribbean Supreme Court.
However, given our understanding of WhatsApp technology, it would have been useful for the Court to have defined with some specificity what proof of service by WhatsApp would look like. Do the deemed date of service rules apply? Would service via WhatsApp be treated in a similar manner as the Eastern Caribbean Supreme Court treats service via email or the filing of documents on the new e-litigation portal? Would simply sending the Order via WhatsApp suffice or would it need to be shown that the WhatsApp was received by the Respondent? Would there be a need to show that the Order sent via WhatsApp was read? Would the Respondent have to confirm receipt either orally or in writing? WhatsApp allows the disabling of read receipts and therefore it begs the question whether a Respondent on whom service of an Order is attempted via WhatsApp could seek to disobey/circumvent said Order by arguing that he or she was not actually served with/made aware of same.
Technology and the ubiquitous use of social media tools will continue to impact the administration of justice and how notice of matters especially urgent matters will be addressed now and in the future. We wait to see what approach Courts in the Commonwealth Caribbean and especially the Eastern Caribbean Supreme Court will take and whether these English decisions will prove persuasive.
Author: Brianna Brantley
Organisation/Law firm: Daniel Brantley Attorneys-At-Law