November 13, 2019

Service – Lonestar Communications Corp LLC v Kaye

The Claimant made an application for an order to dispense with service of the claim form on one of the defendants, per CPR 6.16 and related documents under CPR 6.28.

CPR 6.16 states the court may dispense with service of a claim form in exceptional circumstances. CPR 6.28 does not require exceptional circumstances but the Claimant proceeded on the basis that it did.

The claim involved five Defendants. The first, third and fifth Claimants were served with proceedings but attempts to serve the second Defendant in Israel through the Hague Convention failed. Numerous attempts were made to serve the second Defendant including:

  • contacting the solicitors for the third and fifth Defendants for details of the second Defendant;
  • sending two messages via Facebook Messenger (the Facebook account was subsequently deactivated);
  • sending two messages via Flickr;
  • sending a letter to a company believed to be connected with the second Defendant in Anguilla;
  • sending a letter to a company in Israel whose address was obtained from the second Defendant's personal website (the website was later taken down); and finally by sending a connection request to the second Defendant on LinkedIn.

The Claimant's case was that the second Defendant was aware of the proceedings and was evading service.  The judge agreed. He also found the second Defendant was likely aware of the proceedings given he had been sent document preservation notices by the first and third Defendants, had corresponded with other solicitors by WhatsApp regarding disclosure of his international telephone number, and due to the press coverage of the proceedings.

The judge decided these were exceptional circumstances and described the efforts of the Claimant's solicitors to contact the second Defendant as "heroic". He also found that if the order was not made there would be prejudice to the Claimant, who would be unable to proceed with his claim. By contrast, there would be no prejudice to the second Defendant.  His conduct indicated that he was aware of the proceedings and was taking steps to evade service.

The application was granted with the Claimant confirming it would continue to take steps to inform the second Defendant of proceedings.