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In practical terms, service of documents means the delivery to a person or company of the claim or other court documents about legal process issued against them. This allows them the opportunity to defend or answer the claim or proceedings.
Specific rules on the service of documents exist to ensure that all entitled parties receive legal documents relating to them or their actions and to provide safeguards to ensure that appropriate action can be taken if such documents are not served properly.
All court documents, including claims, applications, judgment orders, petitions etc. need to be served formally, following the various rules, but this can take the form of posting, personal service, bailiff service etc.
Generally the court is responsible for serving documents. Where a party prepares a document which is to be served by the court, that party must file a copy for the court, and for each party to be served.
The court may order that someone else should be responsible for service. That could include the issuing party or their agent or solicitor. In addition the court is not responsible for service where a specific rule or practice direction to the rules provides that a party must serve the document in question or the party on whose behalf the document is to be served notifies the court that he wishes to serve it himself.
The main method of service in England and Wales is by first class post. Other methods of service that can be used, subject to the relevant rules of court and practice directions are:
personal service (by bailiff/process server or by the party issuing the proceedings);
leaving the document at an approved address (see below);
through a document exchange; or
by fax or other means of electronic communication.
Service should be made at the address given by the party to be served, which can include the address of the party's solicitor or agent. Where there is no solicitor acting for the party to be served or the party has not given an address for service the document should be sent or transmitted to, or left at an address as approved in the rules of court - generally the usual or last known place of residence or place of business.
Where the court is to serve a document, it is for the court to decide which of the methods of service should be used.
As service is normally by first class post it is not necessary for a person to be at home when the document is delivered. If a document cannot be delivered to the specified address, including where a person living at that address claims the addressee no longer lives there, the postal authorities attempt to return items to the sender. They will send it to a return address on an envelope (as is the case for all documents sent from courts) or if there is no address the letter is usually opened and formal documents are returned to an address if found on those documents.
If documents are to be personally served and the recipient is not available or at home, it is the responsibility of the person trying to serve the process to decide the best time or place in which to serve the documents.
The court records the fact that it has served a particular document. Documents served by post are deemed (or considered) served unless they are returned through the postal system.
Where the claimant serves a document he/she must file a certificate of service at the court within seven days of service. This certificate must state that the document has not been returned undelivered and give details of the method and date of service.
On receipt of a claim form the debtor has 14 days to respond to the claim. If he/she sends in an acknowledgement of service form the time limit to respond is extended to 28 days from service of the particulars of claim.
If documents are personally served a written record in the form of a certificate or affidavit of service is prepared detailing the time and date of service. This can be used as evidence of service if the recipient denies receipt of such documents.
If it comes to the attention of someone that they have not received legal documents they are entitled to receive, they may take action to ensure they do receive such process by either contacting the other party or their solicitors or by contacting the court. If orders or judgments have already been made in the proceedings, applications can be made to set them aside on the basis that the documents have not been served.
If a party accepts service of documents outside the minimum period of notice allowed under the rules, service can still be considered valid. If service of documents is found to be invalid, new efforts can be made to re-serve. The court may also dispense with service of documents in certain circumstances.
The cost of service of documents by post is included in normal court fees. If documents are to be served personally by a bailiff or process server, charges vary depending on the type of process and whether a bailiff or process server is used.
Last update: 19-08-2004