Author: Bellina Barrow, Attorney-at-Law.
Date: 07 August 2025.
Introduction
The fundamental purpose of service of documents in civil proceedings is to bring the claim form and other documents setting out the allegations of fact and the legal basis for the claim to the attention of the defendant. According to Justice of Appeal Moosai in the Trinidad & Tobago Civ. Appeal No. P228 of 2020 China Building Technique Group Company Ltd & Ors v China Building Technique Group Company Trinidad and Tobago Ltd & Ors, “The object of service is not simply to make one aware of proceedings, but to allow for the receiving party to fully appreciate the case being made against him so as to make informed decisions going forward.” (see also CA P123/2016 Brent Nunes v Magistrate Gomez).
The English High Court ruling in Argyle Rose Ltd & Others v Naaz Solutions Ltd & Others ([2023] EWHC 2403 (Ch)) demonstrated the legitimacy of digital service methods as these can expeditiously and effectively shape and positively impact litigious proceedings, especially those court proceedings that involve cross-border litigants.
Overview of the Argyle Rose Ltd & Others Case
The Argyle Rose Ltd & Others case sets a significant precedent in alternative service methods, particularly the use of WhatsApp for serving legal orders.
In this case, the applicants’ intended claims against the respondents were for breach of confidence, passing off, breach of fiduciary duty, and diversion of proceeds/profits. In addition to inter alia applications for proprietary and restraining injunctions, and a freezing order, the applicants sought permission to serve the respondents out of the jurisdiction and by specific alternative means, namely email and WhatsApp instant messaging.
Key Legal Issues
🔹 Service via WhatsApp – The Court permitted service of the freezing order and proprietary injunctions via WhatsApp, which set a significant precedent in digital service. The Judge, Justice Edwin Johnson, relied on the authority of Fetch.ai Limited v Persons Unknown Category A and Others [2021] EWHC 2254 (Comm), in particular the dicta of Pelling J at paragraphs 4,6, which states:
“…There is, however, an increasing body of case law in which various judges of the Commercial Court have held in various terms that orders which involve either prohibitory injunctions or mandatory orders (including, in particular, freezing orders and the like) should be served by alternative means if that is the only means by which the orders can be drawn speedily to the attention of the respondent concerned because, if the alternative is service by means which will take weeks and perhaps months to satisfy, then the orders which are made and the reasons for the making of those orders will be defeated. In those circumstances, I am entirely satisfied that it is appropriate to make an alternative service order in respect of the order made against the second respondent.”(Emphasis added).
🔹 Proprietary & Freezing Injunction Orders – The claimants successfully obtained the without-notice proprietary and freezing injunctions.
🔹 Jurisdiction & Procedural Considerations – The Court applied the three-part test for service outside the jurisdiction of the United Kingdom i.e. (i) Does each claim raise a serious issue to be tried on its merits? (ii) Is there a good arguable case that each claim falls within one of the gateways in the English Civil Procedure Rules? (ii) Was England and Wales the proper place to bring the claim?
Service in Trinidad & Tobago & the OECS
In Trinidad & Tobago, personal service is the default method of service for a claim form and statement of case (see T&T Consolidated Civil Proceedings Rules 2016 (as amended). Similarly, in the Eastern Caribbean, personal service is the default method of service for a claim form and statement of claim (Eastern Caribbean Civil Procedure Rules (Revised Edition) 2023.
In the Eastern Caribbean, service may also be conducted using their E-Litigation Portal along with the service of an authorization code. In T&T, the TT Law Courts e-services platform does not facilitate service of the claim form and statement of case. Both the T&T and the Eastern Caribbean rules have undergone significant updates, both during and after the Covid-19 pandemic, via various rule revisions and Practice Directions.
In the Eastern Caribbean, there is no requirement to obtain the Court’s permission to serve outside of the jurisdiction once service can be effected in accordance with certain rules and in certain specified proceedings. However, in Trinidad & Tobago, service outside the jurisdiction can only occur if the Court grants permission and in certain specified proceedings. In both jurisdictions, service can also be effected via alternative methods.
Service via instant messaging, more particularly service out via an instant messaging app, cannot be undertaken without the permission of the T&T Court. As previously mentioned, at the core of service is that the receiving party is made aware of the proceedings and also that they can fully appreciate the case made against them.
So, in the T&T Appeal Court case of China Building Technique Group Company Ltd & Ors case, service via WeChat was initially permitted by the first instance court pursuant to an application filed for substituted service of the proceedings, including via the specified method of WeChat.
However, the T&T Court of Appeal set aside the order of the trial Judge. The Appeal Court’s main challenge with the service via WeChat was that, from the evidence, there was the issue as to whether the person was in receipt of all of the documents relative to the clai,m and without this contention (of the individual) being determined, there could be no assumption that the individual was properly served.
Other Global Trends in Digital Service
WhatsApp service may be an effective and expedient means by which notices, summons, pleadings, and orders may be able to be drawn speedily to the attention of the respondent concerned, and it can help to overcome the challenge of concerned respondents evading service. So, it is not surprising that the trend in other Courts in different parts of the world is that WhatsApp and other instant messaging apps have been recognized as valid service methods.
🔹 Brazil – In 2019, Brazil’s highest non-constitutional court – the Superior Court of Justice held that service of process by WhatsApp was not null and as a consequence, there was no obstacle to recognizing a foreign judgment, rendered in Portugal. As the debtor, in that case, did not show any loss arising from the service via WhatsApp, the service was not held to be null.
The principle that no loss was shown to have arisen from the WhatsApp service was also applied by the Court of Appeals of the State of São Paulo, where that Court also rejected the allegation that service of process via WhatsApp was null. There have also been decisions emanating from Brazil that demonstrate a stance that is opposed to service via WhatsApp.
🔹 India – Due to the Covid-19 pandemic, the Courts in India have permitted and recognized the service of notices, summons, and exchange of pleadings via, inter alia, popular instant messaging platforms, like WhatsApp, Telegram, and Signal.
The Honourable Bombay High Court has even gone as far as accepting WhatsApp service of legal notices, pleadings, and summons as proper service (see The Economic Times 2023 Article, “Is a legal notice sent through WhatsApp, email valid?” by Preeti Motiani).
Conclusion
Legal systems are called to adapt as business operations become more global and borderless, and individuals become more geographically dispersed. Alternative methods of service, like WhatsApp, can be critical to ensure that legal proceedings are not thwarted and justice continues to be expeditiously and effectively dispensed and administered.
The demands of justice and present-day commercial realities dictate that sometimes the only means by which orders, legal notices, or pleadings can be speedily brought to the attention of respondents will be via the use of digital service utilizing WhatsApp (or other similar instant messaging apps).