Nowhere to hide

The recent case of Lonestar Communications Corp LLC v Kaye has served as a reminder that you cannot simply ignore a claim, however much you may wish it would go away.

The Claimant made a claim for damages against a number of Defendants, one of which was an individual believed to be based in Israel (“D2”).

Generally, a claim must be properly served upon all Defendants in accordance with the Civil Procedure Rules or the claim may be struck out.

Proceedings were served on the other Defendants but the Claimant’s solicitors encountered difficulties serving on D2.

The Claimant’s solicitors made several attempts to serve proceedings on D2 in Israel under the Hague Service Convention, to no avail. They then proceeded to make attempts to inform D2 of the proceedings using the internet and via social media. These included:

1. Requesting contact details for D2 from the solicitors of the Third and Fifth Defendants as there was evidence that he had been the CEO of those companies at some point. As a result of their enquiry, those solicitors then informed the Claimant that they were no longer instructed by any of the Defendants.

2. Sending a message by Facebook Messenger to D2. The Claimant was able to show that the first message sent this way reached its target, but the second message failed, as D2 appeared to have deleted Facebook messenger.

3. Sending two messages via Flickr, which would have been received as an email. Neither received any response.

4. Reviewing D2’s personal website to discover a connection to a company called Sofixtech. The solicitors then sent a recorded letter to Sofixtech, for which they obtained proof of delivery. Sofixtech returned the letter stating that they did not act for D2. The Claimant’s solicitors then noticed that any mention of Sofixtech had been removed from D2’s personal website.

5. Sending a request to connect with D2 via LinkedIn; this was ignored.

As a result of the above, the Claimant’s solicitors then made an application to the Court to dispense with service of the claim form on D2. The application was granted on the basis that there had been ‘exceptional circumstances’. The Judge concluded that the Claimant was not only aware of the proceedings but was deliberating evading service. There had even been press coverage of the proceedings. There was nowhere to hide.

This case also highlights the importance of making every effort to effect service. The Claimant’s solicitors in this case went beyond the ordinary course of business to notify D2 of their claim. The Judge described their efforts as ‘heroic’ and it would not have been sufficient to simply state that service in the usual way had failed.