In Lipenga v. Kambalame a suit was filed against a Malawian diplomat. The plaintiff was unable to find a personal address for the defendant and so service was effectuated in accordance with a Malawian statute that allows the individual to be served through the Head of the Office if they are in the Public Service. Yet despite the Malawian central authority stating in e-mail service was completed and a certificate would be sent shortly, the plaintiff never received a certificate of service.
Without the certificate, the plaintiff could not pursue an entry of default as the court could not confirm that Kambalame had ever received the court documents.
Based on FTC v. PPCare247 Inc. the judge then approved service by Facebook and email. Because Malawai has not objected to Article 10(a) of the Hague Convention on Service of Judicial and Extrajudicial documents, the judge used this basis to apply service by electronic means in addition to postal channels.
In this particular case, the e-mail address was verified as belonging to the defendant through a series of communications to between plaintiff’s counsel and the defendant. The Facebook account was verified by the plaintiff and it was noted by the court there was regular activity on the account, indicating there was a reasonable assumption the court documents would be seen by the defendant.
What’s interesting in this case is that unlike the recent New York cases involving Facebook service ( Noel B v Anna Maria A and Baidoo v. Blood-Dzraku), there was minimal proof in Lipenga v. Kambalame the Facebook account belonged to the defendant. The plaintiff’s statement that this was indeed the account without having proof seems to be the only support for the claim. The alternate method of e-mail service was much more dependable however and given Facebook service was made in conjunction with e-mail, there is much more reason to believe the defendant would actually receive the documents.
To view the full opinion go to: https://lettersblogatory.com/wp-content/uploads/2015/12/09317366442.pdf