Service of documents Part 3

For the last two weeks we have been looking at the service of the claim forms and accompanying documents on the defendant and we learnt that the defendant who tries to evade service may find himself in an embarrassing situation as the claimant could approach the court to dispose with personal service and have the document served in a newspaper.{{more}} So a defendant needs to accept court documents served on him and deal with the matter in a timely fashion. For the last two weeks, we considered service within the jurisdiction, and this week we will look at service out side the jurisdiction.

The Civil Procedure Rules (CPR) 2000 give the conditions as to the type of matter that could be served and how it could be served out side of the jurisdiction. The matters that could be served outside the jurisdiction are given in Part 7.3 of CPR 2000. CPR 2000 do not provide for divorce proceedings as this is governed by the British Matrimonial Causes Rules, 1977. The document could be sent by registered post to the last known address of the respondent overseas. If the person does not respond or the letter is returned, then the petitioner could apply to the court to have a notice placed in the newspaper to notify the respondent of the start of proceedings.

Specified matters

First and foremost, the matter for which the claimant seeks relief must be home based, that is the event, subject matter or the action must have taken place in this jurisdiction and the defendant is out of the jurisdiction. The claimant has to make sure that he has a genuine issue that could be resolved by the court. He must not waste the court’s time with a frivolous matter. Further, the defendant named in the claim form must be “the proper person”. The matters that could be served on a defendant outside the jurisdiction include a wide range of matters such as a contract which was made in this jurisdiction, a tort matter which occurred in this jurisdiction, property claim, trust matter, among others named in Part 7.3.

The court’s role

For the document to be served outside the jurisdiction, the court must give permission to do so. In order to get this permission, the claimant must make an application to the court. This application could be made without notice to the defendant or as you would hear from your Lawyer – ‘ex parte’. Your Lawyer would draft the application, but you would be required to swear to an affidavit in which you would provide some basic information, for example, the reason for the application, where the defendant could be found and the time allowed for the defendant to respond with an acknowledgment of service and a defence.

How service is effected

Part 7.8 of CPR 2000 provides for the way in which service could be done. The claimant or his agent could serve the document personally. However, it may be served through a willing foreign government or through a consulate or judicial authority in accordance with certain convention (the Hague Convention). Service could also be done in accordance with the law of country where the defendant resides. Where the claimant utilizes the services of a government or state authorities, the claimant must pay all expenses involved. It is payable through the Accountant General and a receipt must be produced to the Minister of Foreign Affairs before the documents could be sent off. Do have a good week.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com