The Claimant applied for permission to serve the Claim Form out of the jurisdiction by alternative means. The First Defendant operates the website www.wordpress.com, the Second Defendant runs the Wikipedia website and the Third Defendant is the publisher of the Denver Post newspaper. The main claim was that numerous articles were posted on websites and weblogs and the Claimant alleged that these articles were defamatory.
The Claimant wished to obtain a Norwich Pharmacal order in order to obtain disclosure of information which would lead to the identification of those responsible for the defamatory postings. The Claimant sought to serve the proceedings by email in order to avoid delay as there was a risk that the data might not be kept for the period of time in question.
As the Court noted, there are differing views on whether it is possible to serve by an alternative method outside the jurisdiction. In the case of Brown v Innovatorone Plc [2009] EWHC 1376, it was held that CPR 6.15 which provides for alternative service is only relevant to cases within the jurisdiction. In Bayat Telephone Systems International Inc v Lord Michael Cecil & Ors [2011], the Court of Appeal held that CPR 6.15 did give the Court the power to order service out of the jurisdiction by alternative method. Service by alternative means may be justified by facts specific to the Defendant, as where there are grounds for believing that he has or will seek to avoid personal service and where that is the only method permitted by the foreign law. Alternatively by facts relating to the proceedings as where an injunction has been obtained without notice or where an urgent application on notice for injunctive relief is required to be made after the issue of proceedings.
In this case, the facts specific to the First and Second Defendant was that they had expressly consented to the service of the order by email and it could be inferred that if they had been asked they would have consented to service of the Claim Form. In the case of the Third Defendant their website invites service by email. The Court was, therefore, prepared to order service by email. In future, the Claimant should put before the Court evidence that the method of service is permitted by the law of the country in which the Claim Form is to be served and expressly seek consent to serve by this method.
Louis Bacon v Automattic Inc, Wikimedia Foundation and Denver Post LLC [2011] EWHC 1072