Bacon v Automattic Inc & Ors

Factual and Procedural Background

The Plaintiff issued a Claim Form on 13 April 2011 naming three Defendants domiciled in the United States: two in California and one in Colorado. The Plaintiff seeks a Norwich Pharmacal Order compelling the Defendants to disclose identifying information about anonymous individuals allegedly responsible for defamatory statements published on websites operated by the Defendants. The Plaintiff claims no other reasonable means exist to identify these individuals. Prior to this, the Plaintiff obtained a Norwich Pharmacal Order relating to a different website, which enabled partial identification of a responsible party. The Plaintiff is a prominent figure in finance with connections to multiple jurisdictions. The Defendants operate the websites wordpress.com, wikipedia.org, and denverpost.com respectively. The Plaintiff’s substantive defamation claim passes the threshold of a good arguable case. The Defendants had been approached by the Plaintiff’s solicitors for disclosure, with varying responses. The Plaintiff seeks permission to serve the claim form outside the jurisdiction by email at addresses specified by the Defendants, aiming to avoid delay and preserve evidence.

Legal Issues Presented

1. Whether a defendant domiciled in the United States can be validly served with a claim form issued in England by means of email.
2. Whether the court has power under the Civil Procedure Rules (CPR), specifically CPR 6.15(1) and CPR 6.37(5)(b)(i), to authorize service of proceedings by alternative methods outside the jurisdiction, including by email.
3. What constitutes "good reason" to permit service by alternative means under CPR 6.15(1).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first identified the central legal question: whether service of a claim form by email on defendants domiciled in the USA is permissible under English procedural rules. It examined the relevant provisions of the Civil Procedure Rules (CPR), focusing on CPR 6.15(1) and CPR 6.37(5)(b)(i), which provide the court with powers to authorize service by alternative methods either within or potentially outside the jurisdiction.

The court analyzed conflicting judicial opinions on whether these CPR provisions extend to service outside the jurisdiction, noting that CPR 6.15 explicitly refers to "this Part" of the rules, which includes both service within and outside the jurisdiction. The court reviewed authorities including the judgments of Andrew Smith J, Nicol J, HHJ Chambers QC, and the Court of Appeal, which held that the court does have power to order alternative service methods outside the jurisdiction but that such orders must be justified by "good reason" and be exceptional.

The court considered the specific facts of the case, including that the first and second Defendants had effectively consented to service by email through correspondence, and the third Defendant's website invited service by email. It emphasized the importance of good reason for alternative service, such as urgency or the risk of evidence being lost. The court also noted procedural safeguards in the draft order allowing Defendants to oppose alternative service.

In interpreting the CPR, the court gave weight to the plain language of the rules, the policy considerations underlying service procedures, and the overriding objective of enabling just and efficient resolution of disputes. It concluded that service by email in this case was justified given the Defendants’ positions and the urgency of the matter.

Holding and Implications

The court held that it had the power to order service of the claim form on the Defendants domiciled in the United States by email at the addresses they had provided or published. This constituted a valid exercise of the court's discretion under CPR 6.15(1) and/or CPR 6.37(5)(b)(i), supported by the specific circumstances of the case including Defendants’ implied or explicit consent and urgency.

The direct implication of this decision is that the Plaintiff may serve the claim form by email on the Defendants, facilitating timely progression of the Norwich Pharmacal application. The court cautioned that future claimants should provide evidence regarding the permissibility of such service under the law of the country where service is effected or demonstrate good reason for alternative service, as service by alternative methods is exceptional and not routine. No new binding precedent was established beyond the application of existing principles to the facts.