Service of Scottish legal proceedings during the Covid-19 pandemic

There have been significant changes to the rules governing the service of Scottish legal proceedings following the coming into force of the Coronavirus (Scotland) Act 2020 (the “CVSA”) on 7 April 2020. Corporates should be aware of the potential for Scottish legal proceedings to be served on them at business premises or electronically, and take steps to ensure that any risks associated with this are considered and appropriately managed.

Note added August 2022: These changes were originally planned to be temporary and were initially put in place until 30 September 2020 with limited power to extend. They were ultimately extended on several occasions and will finally expire on 30 September 2022. At that stage, they will be replaced, with effect from 1 October 2022, by a similar (but not identical) set of provisions in the Covid (Recovery and Reform) (Scotland) Act 2022. The provisions in the 2022 Act are also intended to be temporary. They will initially run until 30 November 2023 with provision to extend to 30 November 2025.

The pre-existing service rules

The Scottish court rules already permit service of legal proceedings in the UK by registered/ recorded delivery post and by sheriff officers/ messengers-at-arms (process servers).

In the case of postal service, the envelope must bear a notice instructing Royal Mail to return any non-delivered item to the court, rather than the party serving. Since only registered post or first class recorded delivery are valid postal methods, this means that postal service requires to be effected in a manner whereby receipt can be confirmed (see here for information on how the Royal Mail is dealing with signed for items at this time). Furthermore, if delivery fails, the court is made aware of this.

In the case of service by process servers, service can be effected by depositing the relevant documents (or leaving them in the hands of an individual) at the registered office or other place of business in such a way that the documents are likely to come to the relevant party’s attention.

In addition to these two methods, in certain cases, it may be possible to ask the court to permit service by advertisement or to dispense with service.

New additional service rules

The CVSA introduces a range of measures to deal with Covid-19 related issues, including at Schedule 4, various issues concerned with civil and criminal justice.

From the perspective of service of proceedings, the two significant measures are:

• Provision to allow the electronic signature of court documents (both by the courts and by parties); and
• Provision to allow parties to consent to receive service of proceedings and other documents by electronic means.

How is consent to accept service by electronic means given?

The Act sets out three ways in which such consent may be communicated:

• In a way that is “specific to the document in question or generally applicable to documents of that kind”;
• In a way that is “expressed specifically to the sender or generally (for example on a website)”; or
• In a way that can be “inferred from the recipient having previously been willing to receive documents from the sender in that way and not having indicated unwillingness to do so again.”

The provisions are therefore widely framed and potentially open parties up to being viewed as having indicated a willingness to accept service based on general statements they may have made or indeed previous conduct.

Potential issues that may arise

So far as the pre-existing service methods are concerned, whether service can still be effected at business premises will depend on the particular arrangements at the premises in question. Are these still open and/or manned? If so, it may be possible for service by post or process server to be effected. In that event, it is vital to have procedures in place to ensure any legal proceedings are promptly identified and passed to the correct person.

So far as electronic service is concerned, those looking to serve legal proceedings will be well advised to seek specific consent from the other party to accept service of the particular proceedings they wish to serve. This will ensure that service is validly effected whereas reliance on general statements or prior conduct will potentially be subject to challenge.

However, some parties may seek to rely on previous informal email communications or general statements made by corporates e.g. on websites or elsewhere, as amounting to consent to accept service by email.

It may be prudent to review standard contract wording on websites and emails in this regard. It may also be appropriate to consider, when making certain general statements (e.g. asking that particular communications be sent to specified email addresses) to make clear that, for the avoidance of doubt, the statement in question does not constitute consent to accept electronic service of any legal proceedings for which specific consent will require to be sought on a case by case basis.

If a decision is taken to consent to accept electronic service, a protocol should be agreed covering key points such as:

• the scope of the consent (generally restricting this as narrowly as possible);
• the period of time for which the consent will be in place, setting out any termination provisions; and
• practical issues such as identifying the list of email addresses the documents should be sent to, the format of that email, and any maximum attachment size that should be observed.

For information regarding the position in England & Wales, see our colleagues’ Law-Now article here.