Pavements and social media – service on tricky defendants
17 December 2019
In Lonestar v Marziano & ors, the underlying claim was for damages for conspiracy and unlawful interference with business arising out of alleged cyber-attacks on Lonestar’s activities in Liberia. Lonestar applied for an order dispensing with service of the claim form and other documents on Marziano (the second defendant).
Lonestar had attempted to serve Marziano in Israel through Hague Convention channels but was unsuccessful. It went on to make “striking efforts” to contact Marziano and inform him of the proceedings. It sought contact details from solicitors understood to have acted for Marziano in other proceedings, and used information obtained from the leak of the Panama papers to contact a company believed to have a connection to Marziano. In addition, three attempts to contact him made use of social media (on three different platforms), and a fourth attempt involved his personal website.
The court found that Marziano was aware of the proceedings and had actively evaded service, such that there were exceptional circumstances enabling the court to dispense with service.
“Heroic efforts” on internet and social media
The court was impressed by Lonestar’s “heroic efforts” using the internet and social media:
- Lonestar’s solicitors used Facebook Messenger to send a message to Marziano. The evidence showed that this message reached its target. A second message was sent a few months later, but failed. The court inferred that Marziano had closed his Facebook Messenger account in the interim.
- Marziano had a personal website that referred to his connection with a company with an address in Israel. A letter was sent to that address and delivery was confirmed. Subsequently, it was discovered that the website containing the reference to the company had been taken down. The court inferred that Marziano had taken down the website following delivery of the letter.
- Lonestar’s solicitors sent two further messages to Marziano using a Flickr account, which sends the full content of messages to users’ email addresses. No response was received.
- Lonestar’s solicitors sent a LinkedIn request to connect with Marziano, which failed.
The court found that the failure to respond to the Facebook messages and the closing of the account, together with the removal of content from the website, indicated that Marziano was aware of the proceedings and was taking active steps to evade service. (The court observed that there may well have been other reasons why Marziano was aware, including correspondence with other parties to the proceedings.) These amounted to the exceptional circumstances required for the court to make an order dispensing with service. The court considered such an order to be fair and just in the circumstances, and noted that Lonestar had undertaken to continue to take steps to inform Marziano of the proceedings.
Personal service by leaving documents on the ground next to the car
In Gorbachev v Guriev, the parties disputed whether good personal service had been effected when Gorbachev’s process server had left the claim form and other documents on the ground next to Guriev’s car before it was driven off. There was no dispute between the parties as to the legal principles applicable to personal service. However, there was significant disagreement as to what assessment the court should make of the evidence and how the legal principles should apply to that assessment.
The evidence comprised written witness evidence from both sides and video footage (with audio) recorded on mobile phones by the process servers who were present. The court found that Guriev had sufficient knowledge of the nature of the documents and that Gorbachev’s process server had left the documents sufficiently near to Guriev, and therefore concluded that personal service had been effected.
As close as was “reasonably practicable”
The court relied heavily on the video and audio footage in concluding that Gorbachev was able to show an adequate evidential basis for each of the elements required for effective personal service. The court found that:
- given the proximity of the process server to Guriev, and the discussion that took place among those next to Guriev (if not Guriev himself), Guriev realised that Gorbachev’s process server was trying to serve papers on him;
- based on the apparent discussion about what the process server was trying to do, and the evidence that those with Guriev were trying to stop the process server approaching him, Guriev knew that service of court proceedings was being attempted; and
- the overall impression from the footage was that the process server “got as near to Mr Guriev as he could have done without assaulting someone and/or risking his own safety” before letting go of the documents.
The Lonestar decision is one of a number of recent examples of the courts’ flexibility and willingness to embrace mechanisms in order to allow victims of cyber-attacks to pursue effective legal remedies, which should offer encouragement to such claimants.
Claimants have also benefited from the Gorbachev v Guriev decision on personal service. However, this decision acts as a reminder to claimants to ensure that process servers are equipped with clear instructions as to what will and will not suffice and, where possible, to obtain video and audio evidence which can be produced in court in the event of a dispute over personal service.
 In relation to cybercrime, see also CMOC Sales & Marketing Ltd v Person Unknown & 30 ors  EWHC 2230 (Comm) in which the court confirmed its jurisdiction to grant world-wide freezing orders against persons unknown and also sanctioned the service of defendants by “innovative” methods including Facebook Messenger, WhatsApp and a data room system. This case was covered in the November 2018 Litigation Review.
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