National and international service of proceedings during COVID-19

Service of documents during litigation can be problematic at the best of times and so service of documents during COVID-19 brings with it a whole host of additional problems nationally and internationally.

The usual rules

The rules on service are set out in Part 6 of the Civil Procedure Rules. This stipulates the way in which proceedings and legal documents must be served by one party on another. The aim of these rules is to ensure that legal documents, particularly the claim form, come to the attention of the other party.

Within the jurisdiction the general permitted methods of service are i) personal service; ii) first class post, document exchange or other service for delivery on the next business day; or iii) leaving the document at a specified place. If a party wishes to serve by fax or other electronic means (such as email) it may only do so if it obtains the consent of the other party. However, if a party has a fax number set out on its letterhead, this is a sufficient indication that they are willing to accept service by fax. This does not apply to email.

Service of documents outside the jurisdiction must be served in accordance with the relevant convention applicable to the country in which service is to be effected. Service can be carried out either by the Foreign Process Section of the Royal Courts of Justice or by a party or its legal representative (provided it complies with the rules for service of the specific country). As this is a complex area, specialist advice would have to be provided to confirm what method of service is permitted for each particular country. Further guidance can also be sought from the Foreign Process Section.

Issues due to COVID-19

During the current pandemic, the usual steps to affect service must still be taken by the appropriate party. As many people are continuing to work from home documents may not come to the attention of the right person, particularly if offices remain unoccupied and are not checked on a regular basis. This could result in Orders and Judgments being made against them.

Further, as some individuals have not been staying at their usual residence, this too could impact on legal documents coming to their attention.

The effects of COVID-19 and the restrictions that are in place continue to differ from country to country. This includes some countries having tighter restrictions and travel bans and there may also be an impact on postal services. In addition there may be judicial guidance altering the way in which documents may be served during this time and so extra care should be taken (and local guidance sought) if attempting to serve documents yourself.

The parties therefore have to act sensibly when serving documents. Particularly if they are aware that the documents are unlikely to come to the attention of the other party due to the pandemic. If a claimant does not act in good faith and takes advantage of the difficulties that have arisen due to COVID-19 when serving proceedings, it is likely it could result in a defendant being successful in having a judgment set aside. Particularly if the court considers that the defendant has a real prospect of defending the claim or there is some other good reason to set aside or vary the judgment or allow the defendant to defend the claim. This was the case in Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB) when the High Court granted the Defendant’s application to set aside a default judgment because it held that the claim form should not have been served by post on the defendant’s office, which the claimant knew or should have known had closed as a result of the government-imposed lockdown.

Sensible way forward

In order to ensure that documents will come to the attention of the other party, it is sensible for the parties to correspond and attempt to agree a method of service. Such discussions should include service by email, which is likely to be safer and more reliable. These discussions will be of particular importance to those documents which are to be served out of the jurisdiction because, whilst the Central Authority and the Foreign Process Section of the Royal Courts of Justice may have re-opened and are now processing requests for service of documents, it is likely that this could still lead to substantial delays due to a significant backlog during the ongoing pandemic.

If a party will not agree to a method of service or remains silent on the matter, seeking an order for alternative service should be considered. Such applications could consider the effect of attempting to serve the documents by a permitted method together with attempting to serve the documents by alternative means, such as email, text or WhatsApp. In some instances, the court have even allowed documents to be served via social media. In support of any such application, however, the applicant will have to provide documentation to support its assertion that service by the proposed method will come to the attention of the other party. Careful thought therefore needs to be given to what method of service ought to be used, as defective service can have serious implications, such as rendering a judgment unenforceable if the proceedings relating to the judgment were not served correctly.

For more information on the above matters, contact Laurence Weeks.