One of the foundations of justice is the right of a party to know the nature of the case that has been brought against them. Additionally, when one side of a case is going to rely on a document as part of the proceedings, the other side is entitled to see it. Serving papers is the process used to deliver and send the documents that make up the court proceedings.
Service as Part of The Civil Procedure Rules
The Civil Procedure Rules include Part 6 which sets out the modern approach to the process serving of court documents. It is important to note that there are special rules for some types of documents such as a bankruptcy petition. Most of the documents which are served will be sent using a normal pre-paid post service. If the service complies with the rules set out, it is considered good.
The Methods of Service
The CPR states that there are several methods of service which can be used. First class post is the usual method of service and one of the most commonly used. Some of the other methods will include:
- Personal service which is where the documents are personally handed to the party. If the party being served is a corporation or limited company, the documents will need to be handed to a person in a senior position.
- Leaving the documents at the correct address.
- Using document exchange, email or fax, but the party will need to consent to service using this method.
The Date of Service
There are also regulations in the CPR regarding the date that the document is deemed to have been serviced and this will vary depending on the method of service. This date will be the relevant date used in the court proceedings and will not be the date that the documents were sent. In cases with a strict time limit, this date can be of vital importance. It is important to note that whether the document arrived before or after the deemed date of service is considered irrelevant to the court proceedings.
As the deemed date of service varies depending on the service method used, it is important to understand the implications for all methods:
- With personal service, the day that the document was handed to the party is used unless this was after 5 pm. In these cases, the date of service will be deemed as the next day.
- With first class post, the deemed date of service will be the second day after the documents were posted.
- With leaving the documents at the correct address, the service date will be the day after the documents were left.
- With a fax, the deemed service date is the same day unless the fax was sent after 4 pm. In these cases, the date will be the next business day.
- With email, the service date will be the second date after the email was sent.
The Irrebuttable Presumption of Service
Most parties involved in litigation find it hard to understand that service is not the same as receipt or delivery in legal terms. A claim form can be deemed as having been served to a party even if it is returned to the court as undelivered. The only exception to this will be if the document was not sent to the usual or last known address of the party.
In most cases, the claim form will be deemed as served even if the claimant knows that the other party is no longer at that address. The only time this will be untrue is when the claimant knows what the new address for the defendant is.
These rules are so strict that defendants cannot do anything to rebut them even if there is proof that they never received the document being served. There was even a court case which found that the service of a document was good where the property had been previously destroyed.
The Correct Address
For service to be deemed good, the correct address will need to be used. However, this is actually dependant on the nature of the party that is being served. The correct address is classed as:
- The last known residence or usual residence of an individual
- The last known, usual residence or the last known place of business if the individual is someone who runs a business or had operated under a trading name.
- If the party is a limited company, the registered office of the business or a place of business that is connected to the claim being made against them.
- If the party is a corporation, the registered office of the business or any place where the business had conducted activity linked to the claim being made against them.
Service on A Solicitor
If the party has a solicitor acting for them and the solicitor is on the record or has already agreed to accept service, all documents should be serviced to them. To go on record, a solicitor will need to lodge a formal statement with the court stating that they are acting for the party in relation to the case.
Service to Parties Out of The Jurisdiction
All rules of service are based on the assumption that the service is within the jurisdiction. If the party is not within the jurisdiction of the court, permission may have to be obtained before the documents are served.