Can a defendant domiciled out of the jurisdiction be served by email with a claim form issued in England? That was the question before the High Court in the case of Louise Bacon v Automatic Inc and others [2011] EWHC 1072 (QB).

The claimant issued proceedings against three defendants all of whom were domiciled in the US. The relief which the claimant requested was a Norwich Pharmacal Order requiring the defendants to disclose to his solicitors the names, addresses and other information of the person responsible for publishing statements which the claimant alleged were defamatory. The order was granted by the High Court.

The first defendant requested that any court orders should be emailed to them. The second defendant, however, requested that a US court order be obtained and provided a website address. The claimant’s Californian counsel confirmed that the court order obtained by the claimant could be enforced in the US provided the correct procedure was followed.

In respect of the third defendant, the position was different. On its website, there appeared various email addresses to which different types of communication should be sent. One of these was ‘legal notices’ and an email address was given. Despite writing to the third defendant requesting disclosure of information, the claimant did not receive a response. As a result, the claimant now sought permission from the court to serve the claim form out of the jurisdiction on the grounds specified in paragraph 3.1(2) of Practice Direction 6B (a claim is made for an injunction ordering the defendants to do an act within the jurisdiction, namely disclose to the solicitors the information sought).

The claimant sought permission to serve proceedings by an alternative method to those set out in Civil Procedure Rule 6.40(3). The method for which the claimant sought permission was service at the email addresses specified by the defendants. But could service be affected out of the jurisdiction by email?

CPR 6.15(1) or 6.37(5)(b)(i)?

The judge noted that service by an alternative method outside the ­jurisdiction has been the subject of differing views expressed in different judgments.

The claimant argued that CPR 6.15(1) (service of the claim form by an alternative method or at an alternative place) and 6.37(5)(b)(i) (application for permission to serve the claim form out of the jurisdiction) provided the court with the powers to order service of proceedings out of the jurisdiction by alternative means. In Brown v Innovatorone Plc [2009] EWHC 1376 (Comm), Andrew Smith J held that the powers of the court to order service by alternative means arose from CPR 6.37 and not under CPR 6.15 as found by Nicol J in GMC v Benjamin [2010] EWHC 1761 (Admin). And in Amalgamated Metal Trading Ltd & Ors v Barton [2010] EWHC 3207 (Comm) HHJ Chambers QC was of the view that such power was given to the courts by CPR 6.37(5)(b)(i) because CPR 6.15(1) does not say ‘by the section’ but says ‘by this part’ and the only part it would be referring to was part 6 which included section IV.

Obiter from the Court of Appeal

The judge noted that the Court of Appeal case of Bayay Telephone Systems International Inc & Ors v Lord Michael Cecil & Ors [2011] EWCA Civ 135 addressed (obiter as the point upon which the Court was required to give judgment related to the extension of time for service of the claim form) the point of the lower court permitting service of proceedings by alternative means. The alternative means included service by emails to defendants in the US and Afghanistan.

In that case Burton LJ observed that an order involving service out of the jurisdiction is an exercise of sovereignty within a foreign state, since the order requires the person served to participate in litigation in what for him is a foreign state, if he wished to defend himself. So for an English court to order service by a method which is not permitted by the state in which service is effected ‘should be regarded as exceptional, to be permitted in special ­circumstances’.

Burton LJ stated that in general the claimant’s desire to avoid delay in serving proceedings or to further the overriding objective under CPR 1 would not justify an order for service by alternative means. However, service by alternative means may be justified by facts specific to the defendant, for example where there are grounds for believing that he has or will try to avoid personal service where that is the only method of service in the jurisdiction in question. He went on to argue: ‘This does not mean that a claimant cannot bring proceedings to the attention of a defendant by email, fax or other more speedy means than service pursuant to CPR 6.40. The claimant could have done so in the present case. But, as I have indicated, service is more than this.’

Noting that the comments made by the Court of Appeal in Bayay Telephone Systems International Inc were obiter (as were Andrew Smith J’s comments in ,Brown), the judge in Louise Bacon chose to follow the reasoning of HHJ Chambers QC and concluded that CPR 6.15(1) specifically referred to ‘by this part’ and not to ‘the section’ and held: ‘Those clear words in the body of the rule seem to me to leave no room for a different interpretation based on the words of the title to the rule, in particular when the words of the title do not unambiguously refer to service within the jurisdiction.’

Finding that service could, therefore, be affected by alternative means, the judge, agreeing with the claimant’s arguments, found that a comparison could be made with the methods of service within the jurisdiction as set out in CPR 6.3(1)(d) and PD 6A paragraph 4.1(1) and (2)(b) and which includes service by email. The fact that the defendants had indicated that they were willing to accept service by email (in the case of the first and second defendants) and as indicated by the third defendant on its website meant that service by email could be affected.

Louise Bacon clarifies the issue as to whether service can be affected by email outside of the jurisdiction. It is important to note that the courts will require evidence from the claimant who is seeking to serve outside the jurisdiction by email that the defendant has expressly confirmed to the claimant that it is willing to accept service by that method (whether through confirming in a letter to the claimant or by expressly stating this on its website).

Masood Ahmed, is a senior lecturer in law, Birmingham City University