Service of documents - Scotland
TABLE OF CONTENTS
What does the legal term “service of documents” mean in practical terms? Why are there specific rules on the “service of documents”?
Which documents need to be served formally ?
Who is responsible for serving a document ?
How is the document in practice normally served ?
What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)?
Is there any written proof that the document has been served?
What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)? Can the service of the document nevertheless be valid ( e.g. can violations of the law be remedied) or must a new effort to serve the document be made?
Do I have to pay for the service of a document, and if so, how much ?
1. What does the legal term “service of documents” mean in practical terms? Why are there specific rules on the “service of documents”?
In practical terms, "service of documents" is commonly understood to refer to the actual receipt of the summons or other document by the Defender, so that the Defender is notified of the court case or decision and/or summoned, and is aware of the relevant court deadlines.
Court rules are intended to ensure that justice for the Defender is not prejudiced, and that the Defender receives the required papers and notification of impending court dates, all within at least the minimum time period allowed. The Sheriff/Judge will normally require proof of service before adjudicating on a case.
2. Which documents need to be served formally ?
Chapter 16 of the Rules of the Court of Session 1994
Chapter 5 of the Sheriff Court Ordinary Cause Rules 1993
Chapter 5 of the Summary Cause Rules 2002
Chapter 6 of the Small Claims Rules 2002
In general documents which need to be served formally:
- A letter giving the Defender notice that court action will be instigated if he does not respond to that letter
- initial writ/summary cause summons etc
- certain documents while case is progressing through court
- notification of judgement/decree
- charge for payment (step before enforcement action)
- documents in respect of any enforcement procedure.
Certain types of civil procedure require further, specific documents to be served.
3. Who is responsible for serving a document ?
- Extra-judicial documents, such as a letter prior to court action, and judicial documents, such as writs or summonses can be served by post (first class recorded delivery). In this case, the document is taken to the Defender's dwellinghouse/place of business by a postal worker, who obtains a signature acknowledging receipt. Postal service of judicial documents may only be instructed by a solicitor, messenger-at-arms or sheriff officer, or in certain cases under small claims procedure by the Sheriff Clerk.
- If these documents are to be served personally, this is done by a messenger-at-arms or a sheriff officer (the nearest Scottish equivalent of the French
'huissier de justice').
- Charges for payment and most other documents in respect of enforcement procedure are served personally, again by a messenger-at-arms or sheriff officer.
4. How is the document in practice normally served ?
- Postal Service - by first class recorded delivery post.
- Personal Service - by messenger-at-arms or sheriff officer personally, on the Defender.
- Personal Service- left with fellow resident/employee at dwellinghouse/place of business.
If after diligent enquiries, messengers-at-arms or sheriff officers consider that reasonable grounds are established for believing that the Defender resides at the address on the summons, papers may be left with a fellow resident of the dwellinghouse/employee of business.
- Personal Service - in cases other than those where there is an individual Defender (ie other legal entity such as registered company).
Personal service can be effected by leaving the summons in the hands of an individual in, for example, the place of business in such a way that it is reasonable to expect an actual legal representative of the Defender to receive the summons.
- Personal Service - depositing/affixing
Where messenger-at-arms/sheriff officer has been unable to effect personal service on the Defender, he may either
- deposit the summons in dwellinghouse/place of business
- affix the summons to the door of the dwellinghouse/place of business.
- Where address is not known - The Sheriff/Judge may grant permission for service by means of:
- publication of an advertisement in a local newspaper circulating in the area of the last-known address of the Defender
- displaying on the walls of court a copy of the initial writ/ summons.
- There are no provisions at present for service of a writ or summons, decree or charge for payment by means of fax or e-mail. However, some other documents which require to be intimated in the course of certain proceedings may be transmitted electronically or in any documentary form.
- For service of persons outside Scotland see:
- Chapter 16.2 of the Rules of the Court of Session 1994
(For summonses, writs etc coming into Scotland, in cases other than those processed under the EU Regulation on Service, or under the Hague Convention on Service and via the Central Authority, all of the specific rules and procedures in a-g apply. For example, personal service of a summons issued in a country outside Scotland on a Defender in Scotland is only legitimate if it accords with Scottish court rules.)
- Chapter 5.5 of the Sheriff Court Ordinary Cause Rules 1993
- Chapter 5.7 of the Summary Cause Rules 2002.
- Chapter 6.5 of the Small Claims Rules 2002.
- In all cases where service is effected other than by the court itself, a certificate of execution of service must be lodged in process, signed by the Pursuer's solicitor, messenger-at-arms or sheriff officer.
5. What happens when in exceptional cases service to the addressee himself is not possible (e.g. because he is not at home)?
See previous answer on Postal and Personal service.
6. Is there any written proof that the document has been served?
- For postal service, see previous answer. Postage is by first class recorded delivery. The certificate of execution of service, including the Post Office receipt, is required by the court as proof of service.
- For personal service, messenger-at-arms/sheriff officer will produce a certificate of execution of service, signed by participating officers and describing method of service.
- For certification in outgoing actions outside Scotland, see the relevant sections of court rules, as mentioned previously. Again, for summonses etc coming into Scotland, all the rules in a. and b. apply.
7. What happens if something goes wrong and the addressee does not receive the document or the service is effected in violation of the law (e.g. the document is served to a third person)? Can the service of the document nevertheless be valid ( e.g. can violations of the law be remedied) or must a new effort to serve the document be made?
The Sheriff/Judge needs to be satisfied that service has been effected correctly and fairly on the Defender before adjudication on a case can take place. Service needs to be completed satisfactorily, otherwise the Defender would legitimately have recourse to an action to recall any decree awarded on the basis that the action was taken without the option to defend it, or even be notified of it. If however it is apparent that the Defender learned about the action because he appeared in it, then his appearance will cure any defect in service.
8. Do I have to pay for the service of a document, and if so, how much ?
Postal service: First class recorded delivery post = £0.90p
If postal service is effected by a messenger-at-arms or sheriff officer, there is an additional fee payable to them, fixed by legislation depending on the circumstances of the case.
Personal service: Fees charged by messenger-at-arms/sheriff officer are fixed by legislation depending on the circumstances of the case.
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