Are you being served? Practical considerations for serving documents during the COVID-19 pandemic

England & Wales 

Correct as of 6 April 2020. This article is being maintained.

As many offices either close their doors or operate with minimal staff in order to comply with new government measures to combat the COVID-19 pandemic, this has an immediate impact upon the active management of ongoing or anticipated legal proceedings. In particular, it may give rise to concerns that proceedings may be formally served at a registered office, without the knowledge of the party being served. Equally, if a business intends to serve proceedings, the current situation raises questions about the best way to proceed. This Law-Now provides some practical tips to help mitigate those concerns.

Service Rules

Under English court procedure, legal proceedings must be formally served upon a defendant using certain defined methods and, at the time of writing, there have been no changes to the court rules with regards to service to allow for disruption caused by COVID-19. This means that it remains valid to serve a company at its registered office or an individual at their home address by first class post, document exchange or other service which provides for delivery on the next business day. This means that defendants may need to take proactive steps to avoid being caught unawares. This is particularly so where there is a risk that unscrupulous claimants may seek to take advantage of the situation to serve proceedings knowing they will not come to the attention of the defendant and then take steps to secure a default judgment as a result of no response to the claim being provided within the relevant time limits.

Proactive Steps

Where there are business premises that are no longer manned then it would be prudent to put in place mail forwarding arrangements or even consider weekly attendances at the premises to check for post (but only if practical and safe to do so and in accordance with the guidelines issued by the Government).

Many agreements will also contain strict provisions with regards to the service of notices and other documents. In order to avoid any later difficulties in complying with such provisions, businesses may wish to consider contacting all parties with whom they have any such provisions in place to seek to agree that service of any notices, claims or documents may be effected by email. The same applies to any parties whom businesses are currently engaged or likely to become engaged in any dispute or legal proceedings.

It is important to note that, under English court procedure, unless a party has specifically agreed to be served by email then service via this method will not be valid. Whilst parties may previously have been resistant to service by email, with so many now working from home, there may well be a far greater willingness to agree to that method of service.

In agreeing to service by email, it is sensible to put in place a protocol governing how such service is to be conducted. The protocol may cover matters such as:

  • The scope of any consent (for example, that it relates solely to named proceedings or a particular agreement only).
  • The period for which service by email will be valid and/or the inclusion of a term allowing a party to terminate consent on a certain number of days’ notice, so there is no indefinite commitment.
  • Any technical limitations to any party’s ability to accept service by email (for example, document formats or attachment sizes).
  • Safeguards to ensure that the email is dealt with appropriately. Parties may wish to make consent conditional on the covering email being marked with the word “SERVICE” in the subject line and being addressed to a specified list of email addresses. Thought should be given to which email addresses are given for these purposes, to ensure sufficient coverage in case of unexpected absences.

Whilst postal services and certain delivery firms are currently operating, given the rapidly changing environment at present, it is simply not possible to be sure that this will always remain the case. Agreeing an email service protocol should therefore mitigate the risk of a party needing to serve a document at short notice and being physically prevented from doing so.

As a further level of comfort, businesses may wish to seek assistance from lawyers who will be able to provide a monitoring service so that they can be informed if any proceedings are in fact issued in certain courts.

Personal Service

Even greater consideration needs to be given to situations where it is necessary to personally serve an individual with documents. Process servers are currently still operating, albeit in many cases on reduced capacity, and inevitably this may be subject to change. As such, where any documents need to be personally served then this should be carried out as soon as possible.

If personal service is proving difficult, then one option would be to try to agree with the individual a time and place for service to take place (this will not of course assist in circumstances where an individual is actively trying to avoid service but may assist in some cases). Ultimately, if personal service is simply not possible, it may be necessary to apply to court for permission to serve on an alternative basis.

Missed Deadlines

In a worst case scenario, if a party discovers too late that they have been served and as a result have missed a deadline to respond, then they should act as promptly as possible to remedy the situation by applying to the court for relief. In light of recent changes to procedural rules regarding extensions of time, it is likely that the courts will also take into account the current situation when assessing any such applications (for example, the setting aside of a default judgment).

In order to be in the best position possible, it will likely be necessary to show that missing the deadline was unavoidable and so it will be helpful to show what practical steps have been taken to monitor post or proactively manage communication channels. The suggestions set out above should go a long way in assisting with such an exercise, in the event that parties find themselves in that unenviable position.