SMO v TikTok Inc.

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case within a relevant gateway, and England and Wales to be the clearly or distinctly appropriate forum. The court should not conduct a mini-trial.

An extension of time for service requires a good reason, viewed in the context of the overriding objective. Tactical issue of proceedings, solicitor negligence, lack of preparation and the claimant’s awareness of impending deadlines will ordinarily weigh decisively against an extension.

Where the foreign state has objected under the Hague Convention to methods of service outside its designated authority, alternative service requires exceptional or special circumstances. Delay and inconvenience alone are insufficient.

The claimant, a child acting as representative claimant under CPR 19.6, brought proposed claims concerning the processing of children’s personal data and misuse of private information by six TikTok-related defendants. The claim form was issued on 30 December 2020. Only the second defendant was domiciled in England and Wales.

The claimant applied for permission to serve the claim form on four foreign defendants, an extension of the time for service, and alternative service on the fifth defendant through the defendants’ English solicitors. The applications followed a lengthy agreed stay pending the Supreme Court’s decision in Lloyd v Google. The central issues were whether the representative claim presented a serious issue to be tried, whether there was good reason to extend time, and whether exceptional circumstances justified alternative service in China.

1. Permission to serve out. The court granted permission to serve the claim form on the first, fourth, fifth and sixth defendants outside the jurisdiction. The claimant satisfied the three requirements identified in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd: a serious issue to be tried, a good arguable case within a relevant gateway, and England and Wales as the clearly or distinctly appropriate forum.
2. The court accepted that the individual claim and representative claim met the first two requirements at the ex parte stage. The claimant’s proposed distinction between the GDPR-based claim and Lloyd v Google had a real prospect of success. The court emphasised that this conclusion did not prejudge the fully contested summary judgment or strike-out application. The court should focus on the pleaded facts and avoid conducting a mini-trial, applying the approach in Okpabi v Royal Dutch Shell plc.
3. Extension of time. The court refused an extension under CPR 7.6. The evidence did not provide a good reason for failing to progress service promptly. The claimant had issued tactically before changes in the law, had no limitation problem, knew that permission to serve out was required, and allowed substantial periods to pass without making the necessary applications. Illness of leading counsel and other professional commitments were inadequate explanations.
4. The court applied the principles collected in Sodastream Ltd v Coates, together with the overriding-objective considerations identified in Formal Holdings Ltd v Frankland Assets Inc. The defendants had not obstructed service and had consistently reserved their position. Their refusal to accept service did not provide justification. The possibility of issuing a fresh claim, while relevant, did not itself warrant an extension, following Cecil v Bayat and Aktas v Adepta.
5. Alternative service. The court refused alternative service on the fifth defendant through Hogan Lovells. Under CPR 6.15 and CPR 6.37(5)(b)(i), there must be a good reason. Because China had objected under the Hague Convention to other methods of service, exceptional or special circumstances were required. The principles in Godo Kaisha IP Bridge 1 v Huawei Technologies Co Ltd and Société Générale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS were applied.
6. The anticipated delay of about a year, the common legal representation, the defendants’ awareness of the claim and the convenience of avoiding staggered litigation did not make the case exceptional. Delay caused by compliance with the Hague Convention must be anticipated and factored into the conduct of litigation. The applications for an extension of time and alternative service were dismissed.

First-instance applications in the High Court. The judgment records that the proceedings had been stayed pending the Supreme Court’s decision in Lloyd v Google, but no appellate history for the present judgment is stated.