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    11:12 AM Benjamin Tham (BSc (National University of Singapore), LLB (Nottingham)); Yuen Kit Kuan (LLB (Nottingham))

    You Can Run but You Can’t Hide: Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others [2016] SGHCR 7

        

    Generally, under the Rules of Court (“ROC”), personal service is only required for all originating processes (i.e. writs and originating summons), unless such service is excepted under any particular rule or statutory enactment or an alternative method of service is authorised (see O 10 rr 1 & 5 ROC read with O 62 r 1(1) ROC).

    Unfortunately, litigants do not live in an ideal world and attempts at personal service are often thwarted when a party is either untraceable or evading service. Even if a party can be successfully located, there can still be problems with regards to whether personal service has been satisfactorily effected. For example, what if a party starts running to evade service, the moment the process server shows him the writ?

    To avoid great delay and expense in bringing a reluctant party before the Court, who is “not desirous of having the question in dispute brought into court”, the ROC therefore provides for an exception to the general rule, which requires personal service for all originating processes (Jay v Budd [1898] 1 QB 12 (“Jay v Budd”) at 15). The ROC confers on the Court the discretion to make an order for substituted service under O 62 r 5 ROC. Specifically, under O 62 r 5(4) ROC, the Court may order substituted service to be effected via “the use of such electronic means (including electronic mail or Internet transmission) as the Court may specify”.

    However, there is no provision in the ROC, the Supreme Court Practice Directions or the State Courts Practice Directions, which specifically allows or prohibits the use of instant messaging applications, social media and internet message boards as a means for substituted service of originating processes in Singapore.

    In Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others [2016] SGHCR 7 (“Storey”), the learned Assistant Registrar granted an application for substituted service via email, Skype, Facebook and an internet message board. To our knowledge, this is the first decision in Singapore permitting the use of instant messaging applications, social media and internet message boards to effect substituted service.

    Facts of Storey

    The applicant-plaintiff commenced an action via writ against three defendants, alleging copyright infringement and breach of contract. Despite successfully obtaining leave to serve the writ out of jurisdiction on the 2nd defendant, Mr David Michael Dobson, the applicant could not effect personal service on him at his last known address in Australia. The process server then asked a neighbour about the 2nd defendant, and she said that she had never heard of him. The applicant therefore applied to the Court for an order permitting substituted service on the 2nd defendant.

    The Court allowed for substituted service through email, which is uncontroversial. However, the Court also allowed for substituted service via electronic means other than email, namely, Skype, Facebook and internet message boards.

    The Judgment

    The ambit of O 62 r 5(4) ROC

    The Court in Storey gave five reasons for allowing the application for substituted service via Skype, Facebook and internet message boards.

    Firstly, the language of O 62 r 5 ROC is wide enough to cover service via the aforesaid electronic means because O 62 r 5(4) ROC “utilises an extensional definition, but not an enumerative definition” (see [7] of Storey).

    Secondly, the Rules Committee did not detail “which platforms or applications were permissible and which were not” in its introduction of O 62 r 5(4) ROC in 2011, because the Rules Committee could not predict which electronic platform would be prevalently used at any point in time. This meant that the precise mode of how substituted service could be effected electronically “would be left to the court of the day” (see [8] of Storey).

    Thirdly, the Court held that the rationale behind substituted service, which is enshrined in O 62 r 5(3) ROC and case law (see Porter v Freudenberg [1915] 1 KB 857 (“Porter v Freudenberg”)), is simply for the Court to ascertain whether the applicant’s suggested method of substituted service would “in all reasonable probability, if not certainty” bring knowledge of the originating process to the party sought to be served. For example, recent statistics indicate that, amongst teenagers, there is a greater usage of instant messaging applications and social media over email. As such, if there are other electronic means of service, which could be more effective than email at bringing the originating process to the notice of the person to be served, the courts “must be open to substituted service through electronic means other than email” (see [9] of Storey).

    Fourthly, other common law jurisdictions such as Australia, Canada, England, New Zealand and South Africa, have already begun allowing substituted service via social media such as Facebook (see [10] of Storey).

    Lastly, a recent consultation paper issued by the Supreme Court of Singapore entitled “Use and Impact of Social Media in Litigation” in August 2010 recommended that substituted service by social media is “permissible under our existing law” and that substituted service is “the most appropriate manner of engaging social media” (see [11] of Storey).

    By way of dicta, the Court also interpreted electronic means under O 62 r 5(4) ROC to include “WhatsApp and other smart phone messaging platforms linked to mobile phone numbers”. This is in light of recent technological developments, which allow a user to transmit PDF attachments via such means (see [12] of Storey).

    Safeguards

    Despite seemingly significantly broadening the range of electronic means (other than email) which can be used to effect substituted service under O 62 r 5(4) ROC, the Court was clearly cognisant of the potential shortcomings thereof, and therefore imposed three requirements.

    Firstly, electronic service per se to effect substituted service is insufficient. Electronic service must be accompanied via traditional forms of substituted service, specifically, posting of the document on the front door of the party’s last known address or via AR registered post. Electronic service per se would only suffice if it can be shown that “the address of the person to be served is attested to be unknown or if there is proof that the person no longer owns or is no longer resident at a known address” (see [14(a)] of Storey).

    Secondly, the applicant must prove that the electronic means applied for to effect substituted service are used by the party to be served. For example, in relation to email, instant messaging applications, internet message boards, etc., the party to be served must have either “explicitly self-identified or signed off as the person to be served”. With regard to social media, for example, the “profile name and profile picture (or other posted pictures) should match the person to be served” (see [14(b)] of Storey).

    Thirdly, not only must the applicant prove usage by the party to be served, the applicant must also additionally prove such usage of the electronic means to be recent. In relation to email, instant messaging applications, internet message boards, etc., the applicant must show proof that a message was sent “within a reasonable timeframe from the date of service” or that the party to be served “was last seen online within a reasonable timeframe”. With regard to social media, proof can be demonstrated via recent activity within a reasonable timeframe. Examples include the recent sharing of photos or posting of messages, etc. (see [14(c)] of Storey).

    Applying the law to the facts

    On the facts, the Court had firstly considered the fact that personal service on the 2nd defendant at his last known address in Australia had failed for the reasons aforesaid.

    Secondly, the Court was satisfied that the 2nd defendant had used the electronic means of communication in question. In particular, evidence was adduced showing a Skype account which was owned by a “David Dobson”, accompanied by a previous conversation in relation to Planet Arkadia (i.e. the subject-matter of the claim brought by the applicant), a Facebook profile owned by a “David Dobson” and an internet message board administrator account of “David | Arkadia” on a forum for the virtual inhabitants of Planet Arkadia.

    Lastly, the Court was satisfied that the 2nd defendant had recently used the electronic means of communication in question. Evidence was led in relation to recent activity on the 2nd defendant’s Facebook profile via the addition of photos and sharing of a video and that the 2nd defendant was recently online on Skype and the internet message board in question.

    The Court was therefore satisfied that there was recent usage of the electronic means of communication in question and granted the application for substituted service to be effected via the same.

    Commentary

    In this day and age, the pervasiveness of the use of electronic forms of communication, such as instant messaging applications and social media, cannot be ignored. As Mr Justice Beazley succinctly put it in his 2013 speech in “Social Media and the Courts: Service of Process”, “[t]here can be no question of boycott.”

    It is therefore submitted that the Court’s decision in Storey, in granting an application for substituted service via the electronic means of Skype, Facebook and an internet message board, ought to be welcomed. The decision clarifies whether commonly used electronic means of communication, other than email, can be used to effect substituted service in Singapore. More importantly, it sets out the general parameters of the use of such electronic means of communications to effect substituted service. With the widespread usage of electronic communications today, this decision ensures that our procedural law remains in touch with technological advancements.

    However, in our efforts to keep up with the changing times and advances in technology, we must not be carried away by the brave new world of social media and instant messaging applications. Despite the cost-efficiency, convenience and speed of carrying out substituted service via electronic means, it is submitted that there remain certain issues or potential problems worth mentioning in relation to effecting substituted service via such electronic means.

    First and foremost, it is submitted that the Courts should adopt an objective approach to whether the proposed electronic means of service would be effective in bringing it to the attention of the party to be served, by taking into account the party’s personal characteristics, like literacy level, age, etc. It is commonplace for people of all ages to own a Skype or Facebook account. However, not all may be conversant with all of the functions of these platforms. For example, an 80-year-old woman may own a Facebook account (with a profile picture fitting the person in question) and post a picture of her cats on a weekly basis. Prima facie, this elderly woman may satisfy the 2nd and 3rd requirements under Storey. However, would she necessarily be aware of how to read a personal message sent to her by the applicant, download the necessary attachment containing the originating process, and/or open the necessary attachment thereafter? Regard therefore ought to be given to factors like the literacy level, age, etc. of a party to be served. Since applications for substituted service are generally ex parte in nature, it is submitted that the Court should be vigilant and scrutinise in greater detail applications for substituted service via electronic means on the parties to be served who are prima facie vulnerable in this regard.

    Secondly, it is submitted that the 1st requirement imposed by Storey (i.e. that substituted service via electronic means should be accompanied by posting of the originating process on the front door of the last known residential address of the party or AR registered post) ought to be dispensed with for two reasons. The first reason is, in imposing the 1st requirement, the Court seemed to suggest that electronic means are subordinate to the abovementioned traditional means of effecting substituted service, without explaining further. However, the ROC, the Supreme Court Practice Directions and the State Courts Practice Directions all do not expressly subordinate electronic means to traditional means of substituted service or require traditional means as an additional safeguard to electronic means. The other reason is that, an application for substituted service generally can only be taken out after two reasonable attempts at personal service have been made. The applicant has to show in his or her supporting affidavit why he or she “believes that the attempts at service made were reasonable” (para 33(2) Supreme Court Practice Directions; para 12(2) State Courts Practice Directions). More often than not, process servers would have attempted personal service on the party to be served at his or her last known residential address before an application for substituted service is taken out. It is submitted that, provided that the 2nd and 3rd requirements of Storey are satisfied, the efficacy of further requiring substituted service via posting on one’s front door or AR registered post over electronic means, as a safeguard is questionable.

    Thirdly, in relation to the 2nd requirement of Storey where an applicant has to show proof that the electronic platform is indeed used by the person to be served, a potential problem exists in the form of fake accounts. Uncertainty invariably exists whether the profile shown under a particular social media account or instant messaging application indeed belongs to the party to be served. Additional safeguards may therefore be required to circumvent this problem insofar as it is possible. For example, save for exceptional circumstances, a requirement can be imposed for substituted service to be effected by a minimum of two electronic means.  This will minimise the likelihood of substituted service being effected through fake accounts.

    Fourthly, in relation to the 3rd requirement where an applicant has to show recent usage of the electronic means applied for, the Court held that evidence that a message has been sent within a reasonable timeframe, or that the user was last seen online within a “reasonable timeframe” (for instant messaging application), or there was user activity within a “reasonable timeframe” (for social media platforms), can be used to satisfy this requirement (see [14(c)] of Storey). Determining what a “reasonable timeframe” is involves a value judgment that depends on the exact nature of each case. For example, the Courts can consider the following factors: the personal characteristics of the party to be served (e.g. age), the frequency of usage of the relevant electronic means, any “downtime” or other forms of technical difficulties which render the relevant electronic mean inaccessible prior to the application for substituted service.

    Fifthly, a potential issue may arise from an applicant’s usage of “entrapment evidence” to satisfy the 2nd and 3rd requirements in Storey. This may be illustrated by the following example. A creditor attempts to bring an action against a debtor for failure to repay monies owed but the debtor is unsurprisingly untraceable. To successfully obtain an order to effect substituted service via an instant messaging application, for example WhatsApp, the creditor would have to satisfy the three requirements in Storey. Assuming the debtor is evading his creditor’s attempts to locate and/or contact him, he would have most likely blocked any further contact attempted by the creditor. Assuming further that the debtor is a private tutor, the creditor then uses a different phone line and poses as a prospective student and enters into a WhatsApp conversation with the unsuspecting debtor. The applicant would thereafter be able to adduce evidence to satisfy the 2nd and 3rd requirements in Storey. Such situations may very well be commonplace post-Storey. However, should such evidence, arguably obtained through deception, be admissible for the purposes of satisfying the 2nd and 3rd requirements in Storey?

    Finally, substituted service is no substitute for personal service. As the Court in Storey rightly pointed out, “[t]he only completely certain way of bringing notice is actual physical service” and that substituted service remains a “trade-off” and inevitably “carries the risk that a document will not actually be brought to the notice of the person to be served” (see [13] of Storey). It is submitted that the Courts ought to beware of the potential slippery slope that electronic means would gradually replace personal service because of the cost-efficiency, convenience and speed that electronic means inevitably entail. As the English Court of Appeal rightly pointed out in Knauf UK v British Gypsum Limited [2002] 1 WLR 907, there may be circumstances which warrant a court making an order for substituted service via alternative methods where there is good reason, but “a mere desire for speed is unlikely to amount to good reason, for else, since claimants nearly always desire speed, the alternative method would become the primary way.”

    Conclusion

    In every application for substituted service, the Court essentially has to balance the rights between two competing interests. On one hand, a claimant “should be entitled to bring before the court any subject-matter in respect of which he wishes to sue, and on the other hand that every one sued should have a full opportunity of defending himself against the claim made against him.” (Jay v Budd at 15).

    It is submitted that this is a difficult balance to maintain because there may very well be good reasons why a party is untraceable. Further, substituted service is inherently imperfect and severe consequences may befall a party who is unable to react to an originating process in time.

    The use of electronic means to effect substituted service in Singapore is still in its infancy. As the case law develops, further modification and/ or refinement of the safeguards in place will invariably occur. Despite the decision being passed over a hundred years ago, the guidance provided by the English Court of Appeal in Porter v Freudenberg in attempting to strike the correct balance still remains relevant today, i.e. the Court must be satisfied that the method of substituted service applied for “is one which will in all reasonable probability, if not certainty, be effective to bring knowledge of the writ of the notice of the writ … to the defendant.”

    As technology advances, newer and more effective electronic methods to effect substituted service will undoubtedly arise. It may be well true that the message to those who intend to evade service is that “you can run, but you can’t hide”.

    * This blog entry may be cited as Benjamin Tham and Yuen Kit Kuan, “You Can Run but You Can’t Hide: Storey, David Ian Andrew v Planet Arkadia Pte Ltd and others [2016] SGHCR 7” (16 July 2016)  (http://www.singaporelawblog.sg/blog/article/166)

    ** A PDF version of this entry may be downloaded here

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