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ARTICLE

Are You Being Served? The Increasing Role of Social Media in Service of Proceedings
As originally appeared in Business Word, September 2012

BY CLAIRE COLLISTER

Social media is playing an increasing role in legal proceedings. The most obvious examples are the growing references in evidence to websites such as Facebook and Twitter in divorce proceedings and employment disputes. However, increasingly social media is being used not only as evidence in legal proceedings, but procedurally too. The Importance of Being Served Once legal proceedings have been issued by the Court they must be served upon the individual against whom the proceedings have been brought (also known as the Defendant). Service is a key feature of all legal proceedings within commonwealth jurisdictions. The reason service is so important is because service of proceedings is the way in which a Defendant becomes aware of the fact that there is a Claim being

brought against him. It is only if a Defendant knows of the existence of the Claim that he will be able to dispute the Claim. This is particularly important as judgment in favour of the person bringing the Claim (known as the Claimant) may be entered, if the Defendant makes no response to the Claim. As a result under Isle of Man law (together with the laws of most commonwealth jurisdictions) it is important to serve a Defendant correctly. If a Defendant is not served with proceedings by one (or more) of the permitted methods, the Claim cannot progress without obtaining Court permission to dispense with the need to serve the Defendant, granted only in exceptional circumstances. Methods of Service The rules dictating the way in which an individual may be served with legal proceedings are embodied in the Rules of the High Court 2009. In the Isle of

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Man service is traditionally affected by the Coroner, a civil servant whose role is to affect service of proceedings upon Defendants and enforce judgments or orders against unsuccessful parties to legal proceedings. Alternatively a party may be served via their advocate if that advocate is authorised to accept service on their behalf. Permitted methods of service include: handing the Claim form to the Defendant, leaving the Claim Form with an adult at the Defendants address, putting the Claim Form through the post box at the Defendants address or last known address. But, if the purpose of service is to put the Defendant on notice of a Claim being brought against him, what will happen when the Claimant knows that the Defendant is no longer present at the last known address, or if, worse still, the Claimant does not know the Defendants last known address? Alternative Methods of Service Where it is known that the Defendant is not (or may not be) present at an address or the traditional methods of service are not open to the Claimant, the Claimant may apply to the Court for permission to serve proceedings by an alternative method, the most common being service by email. More recently, however, Claimants around the globe have been turning to social media sites as a means to effectively and cost efficiently serve proceedings upon Defendants who might otherwise evade service (sometimes deliberately) purely because their current

residential or business address is unknown. Earlier this year in the case of AKO Capital LLP & Another v TFS Derivatives & Others the Mr Justice Teare in the High Court of England and Wales allowed the Claimants in the action to serve one of the Defendants via his Facebook Account under circumstances where the Claimants had found it difficult to locate the Defendant, who was a former employee of TFS in an action seeking recovery of 1.3 million of overpaid commissions. Previous County Court proceedings have also been served via Twitter. Before Claimants are able to serve by alternative methods, such as social media they will need to show that they have attempted service via a traditional method without success. It is also likely that the Court will want to be sufficiently satisfied that the social media account is in use. In the AKO case, the Claimant showed that the Defendants Facebook account was active by pointing out that the Defendant had recently added two friends. The decision followed decisions of the Courts in Australia, New Zealand, Canada and the USA who have readily accepted the ability to serve Defendants via social networking following the 2009 cases of MKM Capital Property Limited v Carmela Rita Corbo and Gordon Kinsley Maxwell Poyser in which the Australian Capital Territory Supreme Court allowed service via a private message on Facebook and the Canadian Case of Knott v Sutherland in which service was affected by leaving a

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wall post on the Defendants account. Social media has also been used by New Zealand since the 2008 case of Axe Market Gardens Ltd v Axe and the USA in the 2011 case of Mpafe v Mpafe in which a Minnesota Court allowed service of divorce proceedings via publication on the internet including contact by Facebook, Myspace or other social networking site.

There are yet to be any known cases of service by social media in the Isle of Man, however, the Court must constantly adapt to the changes in society. In this age of social media where individuals lives are organised and played out through the use of technology, how long will it be before service by social media is permitted in the in the Courts of the Isle of Man? Keep an eye upon your account! Are you being served?
CLAIRE COLLISTER Associate ccollister@applebyglobal.com

This publication is intended only to provide a summary of the subject mattered covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. September 2012 Appleby

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