International family law: is WhatsApp the future for serving court papers?

Posted: 11/07/2019

The Daily Telegraph recently reported that Mandy Gray, a significantly wealthy divorcee, had obtained an order to serve court papers via WhatsApp on her former partner living in New Zealand. 

This has raised questions about whether service via the secure messaging platform will become more commonplace.

There are currently three ways to effect service of applications for matrimonial and civil partnership orders in family proceedings in England and Wales. These are:

• Service by first class post;
• Service by document exchange (DX) if a solicitor has agreed to accept service; or
• Personal service, usually via a process server (the applicant is not permitted to effect personal service themselves).

Perhaps surprisingly, email is not a permitted method of service unless the receiving party (or their legal representative) has previously indicated in writing that they are willing to accept service by email, and have provided the appropriate email address for service. This also applies to service by fax.

In international cases, the rules are more complex. The general rule (for now at least, in light of the current Brexit impasse), is that a document may be served on a respondent outside of the UK via several methods:

• the Service Regulation (Regulation (EC) No 1393/2007);
• service through foreign governments, juridical authorities and British Consular authorities;

or

• permitted by the law of the country in which it is to be served.

In essence, the rules differ depending on where service is due to take place. It is therefore vital to ensure that the local rules of service have been complied with.

However, the English court does have discretion to permit service by alternative methods if there is a good reason to depart from the traditionally permitted methods.

In Mandy Gray’s case, Gray v Hurley [2019] EWHC 1636 (QB), Ms. Gray obtained such an order for alternative service, and proceed to serve a claim form on her former partner, Hamish Hurley, by WhatsApp. 

Ms Gray and Mr Hurley are currently embroiled in a dispute concerning assets worth over £20 million  which Mr Hurley maintains were gifted to him by Ms Gray during their six year relationship. Ms Gray, who obtained a settlement of £90,000,000 when she and her former husband, financier Randy Work, divorced in 2013, alleges that the assets were purchased entirely with her money and that none of the assets were made by way of gift.

Mr Hurley, who had commenced rival proceedings against Ms Gray in his native New Zealand, disputed that the case should be heard in England. The judge, Lavender J, disagreed finding that England was clearly the appropriate forum for the trial of Ms Gray’s claims due to the “substantial connection to England” (“it was in England more than anywhere else that the relationship at issue was carried on” and “many (if not all) of the claims are governed by English Law”). He also concluded that Ms Gray was entitled to serve the claim form on Mr Hurley out of the jurisdiction on the basis that England was his last known domicile.

The fact that Ms Gray was able to serve the claim form on Mr Hurley, who resides in New Zealand, by WhatsApp is reflective of a global trend in permitting less traditional methods of effectively serving court documents. In the US, divorce papers have been served via Facebook and the English civil courts have permitted service via Twitter. In the future, it is likely that service by email, WhatsApp and other social media apps will become the norm. However, for the time being, it is important to remember that such methods are only deemed effective service with the permission of the court.

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