The majority of the UK population now has an account on either a social and/or professional networking site. It would therefore be reasonable for a party to legal proceedings who does not know the whereabouts of their opponent to search social and professional networking sites in order to try to ascertain their opponent's contact details.
However, if the opponent's contact details are not displayed on their profile page, the party is then unable to use one of the methods of service permitted by the Civil Procedure or Family Procedure Rules.
In this situation where a social/professional networking site is genuinely a party's only method of contacting their opponent, it will be necessary for the party to make an application to the court for permission to serve the proceedings via the networking site.
In the past year there have been a couple of reported County Court cases where such applications were considered. Despite both applications succeeding, there was some doubt about whether the higher courts would adopt the same stance on service via a networking site.
The High Court then heard the case of AKO Capital LLP & another v TFS Derivatives & others which was an application for permission to serve a claim form on a defendant via Facebook. The High Court judge created a 2 limb test:
1. Did the Facebook account belong to the defendant?
2. Did the defendant regularly check his Facebook account?
The claimant's lawyers were able to satisfy this test so the High Court granted permission to serve the claim form via Facebook.
The AKO Capital case was a commercial case, as were the County Court cases which were reported. The position in the family law context was unclear; family law writers queried whether the courts would permit service via Facebook in the more sensitive context of family proceedings.
With this in mind, when my colleague (Amy Scollan) and I were faced with a client who had divorced a number of years ago and could not ascertain the contact details of the former spouse despite engaging an enquiry agent, we advised our client to search online networking sites. When our client confirmed that the ex spouse had been located on Facebook, Amy made an application to the court for permission to serve the application via this alternative method.
The court listed a hearing to consider our application. I carried out the advocacy at the hearing and referred to the High Court's 2 limb test. I am pleased to say that the court accepted my submissions and gave permission for us to serve the proceedings on our client's former spouse via Facebook.
As at the date of the hearing, I was unable to trace any other family case where an application for service via Facebook had been made, Amy and I may therefore have created a piece of legal history!
This result was even more satisfying due to the fact that our client had been told by other firms of solicitors that they couldn't assist. This case is therefore another example of the difference between Clarion and other firms, we think outside the box when required in order to achieve great results for our clients.
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