The Weekly Roundup: The 100th Edition

• Published date: 16 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: 1 Chancery Lane
• Author: Robert Parkin and Dominique Smith

This is a very special edition of the Weekly Roundup; it marks 100 bulletins. In that time we've seen the effects of Brexit and of COVID, we've witnessed litigators' fortunes wax and wane, and we've all weathered the various vicissitudes of the past couple of years together. No doubt there will be more to come, but we at 1CL will be right there with you amongst the victories and losses. As Alan Saggerson so wisely used to say, 'if you're not losing any cases, you're not fighting enough of them'.

SMO v TikTok: the Perils of Attempting to Serve Proceedings at the Last Moment

The 31^st December 2020 is a date etched in many travel lawyers minds. As the Brexit transition period ended, copious proceedings were issued prematurely to secure the jurisdiction of the English and Welsh courts. SMO v TikTok Inc (and Ors) [2022] EWHC 489 (QB) is one such case. It provides a useful reminder of the issues that can arise in respect of service out of the jurisdiction, as well as the perilous consequences of leaving service to the last minute.

Factual background

The Claimant brought proceedings against six Defendants for invasion of her privacy and misuse of her private information. Prior to proceedings being issued, the Claimant made an ex parte application shortly after 4pm on Sunday 20^th December 2020, seeking her anonymisation. The Claimant stressed that the urgency of the application stemmed from the fact that the Brexit transition period ended on 31^st December 2020, which brought about changes to the law relevant to the claim. A hearing was held on 30^th December 2020 and the application was granted, although the Judge was critical of the last-minute nature of the application.

The Claim Form was issued on 30^th December 2020. Six Defendants were named, of which only the Second Defendant was domiciled within the jurisdiction of the court. Permission was required to serve the claim form on the First, Fourth, Fifth and Sixth Defendants. However, no application was made seeking permission to serve the claim form out of the jurisdiction. In a Letter of Claim dated 31^st December 2020, the Claimant's solicitors invited the non-English companies to accept service without the need for the Claimant to obtain permission to serve out of the jurisdiction, and said it was not appropriate to serve proceedings as the Supreme Court was due to hear the appeal in Lloyd v Google. As such, the Claimant's solicitors invited the Defendants to agree a stay until that judgment had been handed down.

On 5^th February 2021, Hogan Lovells responded on behalf of all of the Defendants, agreeing to the proposed stay. However, they specifically stated that the Defendants' positions regarding service of the claim form was reserved and the agreement to a stay was "expressly on the basis that it is without prejudice to their right to contest the jurisdiction of the Court and/or to oppose any application by your client for permission to serve out, if so advised. For the avoidance of doubt, we do not have instructions to accept service on behalf of any of our clients. This letter does not constitute submission to the jurisdiction by any of our clients."

A consent order was thereafter filed by the parties, leading to an order by Master Gidden for proceedings to be stayed. Notably, the order recited that the Defendants had expressly reserved their position on whether the English Court had jurisdiction and in respect of any potential...