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You’ve been served – by social media


You’ve been served – by social media

Let’s get social

If you’re a regular on Facebook, you’ll already be familiar with the plethora of options regarding your relationship status – everything from the blissfully conjoined ‘married’ and ‘in a civil partnership’ to the wonderfully vague ‘it’s complicated’. If recent developments are anything to go by, social media sites could soon be adding a ‘just got served’ button to the status ranks.

Due process

Serving papers is a strictly regulated process. At Tremark, when we undertake the serving of legal papers on behalf of a client, we have to observe the principles of the Data Protection Act 2018 and also consider the individual’s right to privacy as outlined in the Human Right Act. It can be frustrating at times, with some defendants being particularly skilled at evading the process – especially when they know the ropes almost as well as we do.

That said, we still manage to serve the vast majority of papers using the tried-and-tested formula of turning up at our target’s home or place of work, even if it does take a few attempts and a little out-of-hours doggedness.

When we find ourselves struggling to track down an evasive subject, we have to start looking at the situation from a fresh angle. If we want to consider serving using another method, there is already provision for this in the current Civil Procedure Rules – Part 6 (6.15 & 6.27). This allows for the court to make an order permitting service by alternative means, where the usual approach has been unsuccessful.

Getting your ducks in a row

The CPR practice directions 6A (9.1 & 9.2) make it clear that any application must be supported by evidence – i.e. why the usual method is not possible, details of the proposed alternative method and, crucially, why the applicant believes that the documents will (or have already) come to the attention of the intended recipient.

It’s important to note that although many of our clients still make an application to obtain permission before serving via alternative means, the court can make an order ruling that steps already undertaken to bring the documents to the attention of the defendant is deemed effective service. This can save a huge amount of time, if considered and undertaken straight away.

Cyber serving

The notion of serving papers using social media in one that’s gaining traction. It’s not as wacky an idea as it may at first seem and courts are beginning to accept that it can be a useful way forward when the subject is proving especially hard to find by conventional means.

In a high-profile case in New York recently, Justice Matthew Cooper granted a Brooklyn woman the right to serve her husband with a summons for divorce via social media. Ellanora Arthur Baidoo had apparently been trying to divorce her spouse for several years, but had been unable to track down the improbably named Victor Sena Blood-Dzraku to serve him the papers. In order to get the judge to agree to the unconventional approach, Baidoo had to prove the Facebook account in question actually belonged to her husband, and that he consistently logged on to the account, meaning he would see the summons.

The devil’s in the detail

In terms serving via social media, my experience is that it needs to be made very clear to the court why and how the serving process will work. Judges and registrars aren’t necessarily tech-savvy; they might need to know how private messaging works, or whether there can be any degree of certainty over whether or not the defendant can be assumed to have seen the message. The court will also want assurance that what is being requested has been considered, measured and is appropriate.

Evasive defendants will lie. Sometimes a little extra thought needs go into how you are going to prove beyond reasonable doubt that they have been properly served. An additional layer might be to upload the content of the documents to be served to a custom web page with a personal URL (PURL), which allows an administrator to track visits to the page. Once the defendant activates the PURL, evidence of when – and from where in the world – the page was viewed can be logged and used as confirmation that papers have been served.

Making it stick

If you commission a dedicated investigator or a specialist process server who can also provide evidence that only they and the defendant have knowledge of that PURL, it could well swing the balance of credibility. My experience is that judges like the fact that this task has been carried out by professional specialist with no personal benefit or interest; the court will definitely want assurance that it can be proven (or that there is at least an extremely high likelihood) that the defendant has seen the content of the document to be served.

Social media is still an experimental medium as far as process serving is concerned. There still aren’t any shortcuts to a successful outcome and I believe it’s still best to start with a traditional face-to-face approach. However, times are a-changing and, if it proves to be a successful way of contacting elusive individuals, it could become a useful and cost-effective alternative.

If you’re a regular on Facebook, you’ll already be familiar with the plethora of options regarding your relationship status – everything from the blissfully conjoined ‘married’ and ‘in a civil partnership’ to the wonderfully vague ‘it’s complicated’. If recent developments are anything to go by, social media sites could soon be adding a ‘just got served’ button to the status ranks.

 


About The Author

Mark Hodgson

Mark Hodgson is the Managing Director of Tremark Associates, one of the UK’s leading providers of investigative services. Mark has 30 years experience in private Investigations and the commercial debt recovery industries. He is Vice President of the Association of British Investigators, a member of the World Association of Detectives, The Institute of Credit Management and an associate member of R3 -The Association of Business Recovery Profession.


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