Court allows service of court documents by access to online data room

In the recent case of Hwang Joon Sang & Anor v. Golden Electronics Inc. & Ors (HCA 1529/2019; [2020] HKCFI 1084), Hong Kong’s Court of First Instance allowed a novel mode of ordinary service of court documents, using an online data room, to which the persons so served were given access by being sent a previously Court-approved letter providing a link to the data room with clear pictorial instructions, and by separate communication an access code to the data room. In principle, any court documents may be served in this way with the Court’s permission, except for documents which are an originating process (such as writs) or those that are required to be served personally.

The Facts

The Plaintiffs, purportedly defrauded of significant sums, asserted proprietary claims over the funds in bank accounts held by the Defendants. A firm of attorneys-at-law was engaged by the Plaintiffs, through their Hong Kong solicitors, to effect service of documents on some of the Defendants in Taiwan. Some of the documents served on some of those Defendants were returned, but the Court was satisfied that those Defendants were aware of the proceedings and that their decision not to participate in them was both voluntary and informed and they were attempting to refuse or evade service of the documents.

Service via online data room

The Court decided to allow service by online data room for the following reasons:

1. 

There were numerous  Defendants in the action and further Defendants were likely to be added  as a result of the Plaintiffs’ tracing of assets;

2. 

There was a substantial body of material in the form of affidavits, exhibits and previous court orders and there would likely be more added;

3. 

There was clearly significant expense, as well as the use of time and paper, in continued service of significant volumes of hardcopy materials, not least if that also involved employment of agents/lawyers overseas to effect that service;

4. 

The Defendants were aware of the  proceedings and their decision not to participate in them was both voluntary and informed;

5. 

The Court is mandated to give effect to and further the underlying objectives of the Rules of High Court by active case management including making use of technology;

6. 

This seemed to be precisely the sort of case, and precisely the sort of circumstances, in which the underlying objectives of case management strongly pointed towards the use of available technology;

7. 

In the modern era of communications, it has become relatively common for Courts to permit service to be affected by use of email. The Court had also previously, in a small number of other cases, permitted service using Facebook Messenger or WhatsApp Messenger, which are both private service channels which might be used either to send documents or to send a link to documents; and

8. 

The Court  considered the English decision in CMOC Sales & Marketing Ltd v Persons Unknown and 30 others [2018] EWHC 2230 (Comm) (which allowed service of documents by use of an online data room) and was satisfied that in an appropriate case, such as this one, a similar mode of service can clearly be justified in Hong Kong.

One size does not fit all

The Court made it clear that, there is no “one size fits all” mode of service and that this is fully catered for by the need for parties and the Court to proactively consider the appropriate mode of service in a particular case. As the Court remarked, service by access to an online data room might not be suitable for some individuals, in particular when technology would be a bar or hurdle rather than an aid to those individuals. In this case, there was also a distinction between those defendants for whom the Plaintiffs had an email address and those for whom they did not.  The method of providing the link and the access code, so as to facilitate access to the data room, may therefore vary from party to party.

It is not entirely clear whether the Court’s decision would have been the same had it not been satisfied that the Plaintiffs had brought the proceedings to the Defendants’ attention. This may be why the Court highlighted the importance that any first occasion of service on any defendant or third party should be effected by a Court approved method before an alternative is mooted.