Service in the time of COVID-19

Posted on 16 June 2020

Service is the formal process by which specific documents are brought to the attention of one party by another party during the litigation process. Whilst it might be easy to overlook service as a formality, service is of critical importance. If documents are not served correctly, a Court can decide that the document in question has not been served at all, meaning the serving party has missed a time limit.

The penalties for getting it wrong can be very high: a claimant deemed to have served particulars of claim late faces having their claim struck out; a defendant who fails to file a defence or acknowledgment of service in time risks judgment being made against them in default with no opportunity to defend themselves.

Although the rules relating to service have not changed during lockdown, the practical challenges of service have.

Methods of service

The default method of service will be determined by the provisions of the Civil Procedure Rules (CPR); however, the CPR allow for parties to agree a different method such as by email.

In some situations, it will be necessary to serve documents at a particular business address – for instance, where the contract to which the dispute relates stipulates an office address for service or where a party needs to effect service at the place the opposing party carries on its business. This is particularly relevant where the recipient party has not yet instructed solicitors or where it is not possible to communicate with them in advance to agree another method of service.

Certain types of applications (usually those with particularly onerous consequences) are required to be served personally on the recipient whether it be an individual or on a company. Personal service is defined by the CPR as "leaving it with the individual" – in the case of a company, that is by leaving it with a person holding a senior position within the company. It is not simply enough to post a document or put it through the letterbox and typically involves a professional process server physically placing documents in the recipient's hand.

The new normal: practicalities of service

Given the rules of service have not changed, a party is still entitled to send documents to the specified business address of their opponent. In practical terms this may lead to delays in receiving a response when the office in question is closed. This is less a problem for the serving party and more a problem for the recipient who may have lost time between the official date of service and the date the relevant individuals became aware of the documents.

In the pre-COVID world, it was standard practice for solicitors to refuse to accept service by email. However, we have seen a move towards a pragmatic approach. Legal representatives are by and large re-thinking this default position and agreeing to accept email service subject to sensible provisions. This might include requiring service to be effected on a number of email addresses to minimise the risk of a document being missed if sent to just one staff member. As lockdown begins to ease, it will be interesting to see if this change becomes a permanent one.

Personal service is likely to pose its own issues. Leaving documents with an individual may be a challenging task given that individuals from separate households are not currently permitted to be within two metres of each other.

Service out: a different obstacle

In some scenarios, a party may serve documents on parties located overseas, referred to as "service out of the jurisdiction". Pre-COVID, this process was heavily reliant on the Foreign Process Service (the FPS) unless the party to be served has nominated solicitors to accept service. The FPS uses diplomatic channels to pass a request from service from the British Embassy to the host country's Ministry of Foreign Affairs who arrange for service locally. A complex process at the best of times was complicated further when on 16 April 2020, it was announced that the processing of requests for service outside the jurisdiction by the FPS had been suspended. Although the FPS remains closed to the public, it is now accepting documents for processing by post, but there will likely be a significant backlog and inevitable delays to processing times.

Solutions for those serving documents

Although no reported case has yet considered personal service during lockdown, pre-COVID case law indicates what the serving party is required to do in order to meet the required threshold. In the case of Gorbachev v Guriev, it was held that getting as near "as was reasonably practicable" was sufficient to effect personal service in circumstances where the documents were dropped in the eyesight of the recipient and where the recipient had made concerted efforts to avoid direct contact with the process server.

 If the serving party makes efforts to draw the recipient's attention to the nature of the documents and leaves the documents as near as "reasonably practicable" this is likely to be sufficient. The serving party should take steps to document those efforts to mitigate against the risk of a dispute about effective service. It is worth considering the potential reputational impact of putting a recipient at risk of COVID-19 and appropriate caution should be deployed when instructing process servers so as to encourage them to maintain the correct distance with the recipient.

Personal service aside, the starting point is likely to be: can you secure written confirmation from the intended recipient that they will accept service by e-mail? In the case of contractual disputes, it is also worth checking if the contract stipulates an address and an alternative address in the event the specified address is closed. If in doubt, and if it is not possible to agree service by email, consider making an application to the Court for alternative service (also known as substituted service).

Alternative service refers to service by a different method than that stipulated in the Civil Procedure Rules, to achieve the purpose of bringing the documents to the recipient's attention. Alternative methods might include serving documents via a dataroom, WhatsApp or even by Facebook. Whilst it is preferable to obtain the Court's permission in advance, where time pressures make that impossible the Court does have power to grant alternative service retrospectively.

For service out of the jurisdiction, it is worth checking that there is no way to avoid service out – for example, by serving on a UK branch of an overseas organisation. Where that is not an option, service out of the jurisdiction remains a possibility but relies on bi-lateral treaties. This is a complex process and any party considering it should take detailed legal advice as to the appropriate steps.

When serving a claim form, claimants would do well to be cautious in rushing to apply for judgment in default, if the acknowledgement of service or defence are only very slightly late.

Solutions for the intended recipient

Businesses might want to consider steps to limit the risk of a document being served correctly but not coming to the attention of the relevant person in a timely manner.

In terms of practical steps, ensure appropriate mechanisms are in place for checking the post if the office remains open. If a business has a skeleton staff on-site to take receipt of documents and post, there should be an efficient system of distributing the documents onward to the appropriate team. If the office is completely shut down, appropriate signage could help indicate the office is closed and provide alternative ways of contacting the company. For company directors, it is worth checking whether the company's information on Companies House is up to date and carrying out an audit of commercial agreements with regards to notice provisions, particularly if you have any reason to suspect litigation could be commenced against you. If a notice provision allows for service on an authorised agent, check whether that agent is still operating.

Same rules – new context

In a world that has been driven to conduct business online by the pandemic, parts of the litigation process remain unavoidably reliant on service through physical delivery of paper documents. Whether you are the sender or the recipient, it is worth planning ahead and seeking to engage with your opponent to agree a pragmatic approach to avoid falling foul of the pitfalls of service.

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