Full case report

Bacon v Automattic Inc

Reference [2011] EWHC 1072 (QB)
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 6 May 2011


Summary

Libel – Disclosure – Norwich Pharmacal – Foreign Websites – Respondents outside jurisdiction – Permission to serve application outside jurisdiction – alternative service of Claim Form by e-mail – Jurisdiction to order


Facts

The Claimant, B, issued Part 8 proceedings seeking Norwich Pharmacal relief against three Defendants, all of whom were based in the United States. The disclosure sought was information that was expected to assist in identifying person(s) who had posted defamatory material about B on websites controlled or operated by the Defendants.

On this ex parte application, B sought permission to serve the Claim Forms on the Defendants out of the jurisdiction and for permission to use an alternative method of service – namely e-mail.

The First Defendant had indicated prior to the application that it would provide the information sought if B obtained a Court Order. The Second Defendant had responded similarly, although had indicated that they would only recognise a Court Order from a US Court.  The Third Defendant had not responded.


Issue

(1) Whether permission to serve the Claim Form on the Defendants out of the jurisdiciton should be granted;

(2) Whether service by e-mail should be permitted on the Defendants


Held

(1) B had demonstrated that had a good claim for Norwich Pharmacal relief and permission to serve the Claim Form on the Defendants outside the jurisdiction would be granted.

(2) Permission to serve the Claim Form by alternative means was granted. The jurisdiction so to order was under CPR Part 6.15, notwithstanding conflicting decisions as to whether the jurisdiction to make an order for alternative service outside the jurisdiction was provided by CPR Part 6.15 or CPR Part 6.37(5)(b)(i).

per curiam

(3) Where orders for alternative service by e-mail are sought, (a) the Applicant should specifically ask the respondent whether service by e-mail is permitted by the law of the country in question and, if so, whether they will consent to service by e-mail [22]; and (b) the Court should be provided with evidence as to whether the proposed method of alternative service is permitted by the law of the country in which the claim form is to be served.


Comment

Alternative service of a Claim Form out of the jurisdiction is a difficult area, and there are conflicting authorities on the source of the jurisdiction to make such an order. The Court of Appeal has adverted to the broad issues of sovereignty which are engaged when a foreign court purports to serve a citizen in another state with legal proceedings. These are resolved by Treaties between nations, for example the Hague Convention. In Knauf UK Gmbh -v- British Gypsum Ltd 2001] 1 WLR 907 Rix LJ stated that orders for alternative service could not simply used as an expedient to get round the requirements for service imposed under the relevant Convention [59]:

“… there cannot be a good reason for ordering service in England by an alternative method on a foreign defendant when such an order subverts, and is designed to subvert, in the absence of any difficulty about effecting service, the principles on which service and jurisdiction are regulated by agreement between the United Kingdom and its Convention partners. This is not a matter of mere discretion, but of principle.”

Rix and Stanley Burnton LJJ made similar remarks in Bayat -v- Cecil [2001] EWCA Civ 135 see e.g. [65].

The Judge in the current case was satisfied that CPR Part 6.15 did give the Court jurisdiction to make an order for alternative service outside the jurisdiction.


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