Bacon v Automattic Inc & Ors

The court held that CPR 6.15(1) empowers the court to authorise service of a claim form outside the jurisdiction by an alternative method, including email. Such service remains exceptional and requires good reason. Mere speed or avoidance of ordinary service delays is insufficient. Defendant-specific circumstances, including consent or an invitation to accept electronic service, may justify the order, particularly where urgency creates a risk that relevant information will be lost. Applicants should provide evidence on whether the proposed method is permitted by the law of the country of service. If it is permitted, an alternative-service order is unnecessary.

The claimant issued proceedings against three United States defendants operating websites on which allegedly defamatory statements had been published anonymously. He sought Norwich Pharmacal disclosure to identify the publishers and permission to serve the claim form outside the jurisdiction by email.

The central issue was whether the Civil Procedure Rules authorised alternative electronic service outside the jurisdiction and, if so, whether the circumstances supplied the required good reason. The court also considered the claimant’s evidence concerning the underlying defamation claim, urgency, consent, and the likely enforceability of the order in California.

1. Application granted. The claimant established a good arguable case in defamation and a well-founded basis for Norwich Pharmacal relief. The principle described in Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 supported seeking information from persons innocently mixed up in the alleged torts. The information was needed to identify the anonymous publishers, and delay risked continuing publication and the loss of retained data.
2. The court construed Civil Procedure Rules 1998 r 6.15(1) as conferring power to authorise service outside the jurisdiction by an alternative method. The reference to Part 6, rather than only to the domestic service provisions, was decisive. The requirements in r 6.15(4), including specification of the method of service, deemed-service date and response period, supported that construction. The court therefore did not need to locate the power solely in r 6.37(5)(b)(i).
3. The approach of the Court of Appeal in Bayat Telephone Systems International Inc & Ors v Lord Michael Cecil & Ors [2011] EWCA Civ 135 was followed despite being obiter. Alternative service outside the jurisdiction is exceptional because service engages the sovereignty of the foreign state. Mere speed is insufficient, but circumstances specific to the defendant or proceedings may establish good reason.
4. Good reason existed here. The first and second defendants had indicated willingness to provide information following a court order and had identified email channels for legal communications. The third defendant’s website invited legal notices by email. The urgency of protecting reputation and the limited retention period for identifying information reinforced the conclusion.
5. The court declined to adopt the contrary conclusions in Brown v. Innovatorone Plc [2009] EWHC 1376 (Comm), Amalgamated Metal Trading Ltd & ors v. Baron [2010] EWHC 3207 (Comm) and Abela v. Baadaerani [2011] EWHC 116 (Ch) insofar as they confined the power to domestic service or placed it under r 6.37. The textual reasoning in Amalgamated concerning the reference to Part 6 was accepted. Future applicants should address whether the proposed method is lawful in the country of service, or explain why evidence is unavailable.