Service of Documents – Part 2

Last week we look at the service of claim form, that is the document which starts a matter in the High Court,{{more}} and by now you would understand that the service of document is to inform a defendant that a matter is brought against him or her and he or she is required to respond. The claim form is not the only way of initiating a matter in court. For example, in divorce proceedings, a petition is used to initiate the matter; in a civil matter in the magistrate court it is a summons. All these documents must be thereafter served on the defendant personally in the first instance. Where personal service cannot be employed, then other methods would have to be utilized.

Other forms of service

The law provides for alternative methods of service if personal service could not be effected on the defendant. In that case, an affidavit giving proof of how the document was served must be presented to the court. The evidence must show that the method was sufficient for the document to reach the defendant and a copy of the claim form must be attached to it. This type of affidavit must be referred to a registrar, judge or master for consideration. Where he or she is satisfied that the information has reached the defendant, then it will be regarded as good service.

Application to enable service

A claimant could make an application to the court to serve in a specific manner. For example, if a defendant is evading service, the claimant could ask for the document to be served in a newspaper in circulation. This can also be done in the case of divorce proceedings. Where a respondent is overseas and all attempts to reach him by mail fail, the petitioner could ask the court’s permission to place a notice of the start of proceedings in the newspaper. The petitioner must state that there are relatives and friends who could convey the information and that the information would reach the petitioner. The UK Matrimonial Causes Rules (1977), which applies to us, provide for the Registrar to deal with this application.

A document specifies the mode of service

Where two persons enter into a contract and agreed to a particular method of service, then the agreement must be followed.

Service on an agent

A claim form may be served on an agent for a defendant who is out of the jurisdiction, but the claimant must make sure he complies with the law with respect to the agent and the transaction. An application for service on the agent may be made to the court. This can be done without notice to the agent or principal, but in an affidavit accompanying the application, the claimant must note that the relation of agent / principal still exists and that the contract was entered into in the jurisdiction. It must also state that the principal cannot be served in the jurisdiction. Only after the court grants an order can the claimant serve the claim form on the agent and the agent must also be served with the order of court. A copy of the same document must still be sent to the principal whose address is out of the jurisdiction.

Where the defendant is out of the jurisdiction, certain dynamics will change, in particular the length of time that is allowed for the defendant to respond. Next week we will look at service outside the jurisdiction, provided there is no urgent matter.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com