Service of the Claim Form by Social Media: Gray v Hurley [2019] EWHC 1636 (QB)

Pursuant to CPR 6.3(1), valid service of the Claim Form within the jurisdiction of England and Wales [or Scotland and Northern Ireland – see CPR 6.40(2)] can be effected by any of the following methods:

  1. Personal service, in accordance with CPR 6.5;
  2. First class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction (PD) 6A;
  3. Leaving it at a place specified in CPR 6.7, 6.8, 6.9 or 6.10;
  4. Fax or other means of electronic communication, in accordance with PD 6A; or
  5. Any method authorised by the court, under CPR 6.15.

In the recent case of Gray v Hurley [2019] EWHC 1636 (QB), the defendant applied to set aside an order for alternative service (at an alternative place) out of jurisdiction, where service had been completed by WhatsApp message.

However, the defendant did not challenge the claimant’s method of service.

Can it be interpreted from this case that service by way of WhatsApp message (in the UK) may amount to valid service?

WhatsApp messages could potentially fall under ‘any other means of electronic communication’, which require prior indication in writing from the receiving party (typically the defendant’s solicitor) that it is willing to accept service by this method [PD 6A para 4.1(a)], as well as confirmation of where the claim form must be sent [PD 6A para 4.1(b)] and any limitations that apply [PD 6A para 4.2].

Alternatively, a party may make an application seeking a court order that either renders steps already taken to serve the Claim Form on the defendant by an alternative method as good service [CPR 6.15(2)], or permits future service of the claim form by this alternative method [CPR 6.15(1)].

In Barton v Wright Hassall [2018] UKSC 12, the Supreme Court concluded that a litigant in person’s (LiP) service by email, without the accepting party’s authority, was not valid service.

Lord Sumption reasoned, at paragraphs 18 and 19 of his judgment, that:

‘Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.

... CPR rule 6.3 and Practice Direction 6A ... are accessible on the internet ... they are not in my view obscure’.

Unless and until the Civil Procedure Rule Committee (CPRC) devises separate guidance for LiP (which are predicted to grow in number when personal injury reforms increase the small claims limit), applying a lower standard of compliance with rules, practice directions and court orders will not usually be justified.

Incidentally, the Civil Justice Council published a Consultation Report, last month, which criticised the civil sector for its ‘passive’ treatment of vulnerable claimant and defendant parties, engaged in civil proceedings.[i]Vulnerable witnesses and parties within civil proceedings: current position and recommendations for change contributed 8 key recommendations for change, calling for the CPRC to consider rule and practice direction revision, where appropriate:

‘The Civil Procedure Rule Committee should consider amending the current procedure rules (and any relevant accompanying practice directions) to focus the attention of all civil Judges, parties and advocates upon the issue of vulnerability.

Ordinarily, service by WhatsApp would result in proceedings being received via WhatsApp (a mobile phone user) and is therefore most likely to occur when unrepresented parties bring claims against individuals, as opposed to companies (i.e. employers).

Nevertheless, social media is one of the most popular modes of communication in the 21st century, generally speaking. Hypothetically, if WhatsApp could be utilised to validly serve a Claim Form, could Facebook, Instagram, LinkedIn, or Twitter also facilitate valid service of employers’ liability (EL) and product liability (PL) proceedings against defendant companies?


[i] Civil Justice Council plans to help vulnerable parties in civil courts’ (Solicitors Journal) <> accessed 13 September 2019.