Now that’s service for you! Court documents delivered by WhatsApp

16th September 2019 Family Law

Over the summer, a family dispute being heard in the civil courts (more about that later!) gained widespread attention when the claimant got permission to serve her claim form (the form used to start civil proceedings) on her ex by WhatsApp message. In Gray v Hurley, an unmarried couple were (and still are) in dispute over the ownership of extensive assets, property and investments. Before these substantive issues can be resolved, the court had to adjudicate on whether it had the power to deal with the dispute and whether it was right for the claimant (Ms Gray) to be allowed to serve Mr Hurley by WhatsApp.

Ms Gray – a wealthy divorcee – claims that the assets in question were obtained using her money. She disputes that she made gifts to Mr Hurley and says that payments were made as a result of his undue influence upon her. In England and Wales, disputes between unmarried couples are decided with reference to the often strict laws that apply to the ownership of each individual asset, hence the dispute proceeding in a civil court rather than the family court. There is a different regime for dealing with financial provision for the children of unmarried parents. There is no requirement to come up with a “fair” result as there is when a divorcing couple cannot agree on a financial settlement.

Mr Hurley wanted the case to be decided with reference to New Zealand law – the country of which he is a national and where he said he was currently living – whereas Ms Gray argued that English law should apply due to where the parties were living at the relevant times. New Zealand law (and I’m no expert) appears to have a potentially more generous regime in place for the resolution of disputes between cohabitants. Following a complex analysis, the judge concluded that the dispute should be litigated in England.

What about service? Was it right for Ms Gray to be permitted to serve her claim form upon Mr Hurley by WhatsApp message? First, given that the proceedings would be dealt with in England, it was entirely appropriate that Ms Gray had been permitted to serve the claim form on Mr Hurley out of the jurisdiction (in a place outside England and Wales). It followed that using WhatsApp was an acceptable way of effecting service where permission had been granted.

The norm will still be service by post – don’t expect solicitors to suddenly start notifying people of legal proceedings by WhatsApp, Facebook or Snapchat (though it might be hard to prove anything if the messages disappear…). However, more creative options for serving difficult to reach litigants exist and, in my personal experience, do get used. This can include service by a telephone call from one firm of solicitors to another where there is a really urgent application afoot concerning the international abduction of children.

Law courts are often seen as stuffy old-fashioned places where people in dusty wigs debate points of legal procedure in Latin. The reality is very different from this. Although IT projects are notoriously difficult to deliver effectively across public sector institutions, the court service really is modernising. You can now apply for a divorce online and various other processes and procedures can be accessed either wholly or partially without using paper.

A first look at the rules which govern procedure in the family courts (the Family Procedure Rules 2010) might lead you to believe that we are still stuck in the past but look a little closer and you will find that the courts have wide powers to effect service “by an alternative method”. This paves the way for many different ways of doing business.

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Michael Chapman is a Head of Department located in Manchester Londonin our FamilySports Law departments

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