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Service of documents

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Last week the emphasis was on the service of the claim form within the jurisdiction. After the claim is served it becomes necessary to serve other documents. Your lawyer will arrange for acceptance. His clerk will collect on your behalf.

Documents derived from the court, such as orders and judgment, are served by the court office. Actually the lawyer’s clerks collect them on behalf of the clients. Clients representing themselves have to be served.

Service of documents outside the jurisdiction

You have filed your claim form so you have become the claimant. The next step is to serve the form on the defendant. You discovered that the defendant is not in the jurisdiction and you cannot carry out personal service. How are you going to reach him to serve him your claim form and further court process? Don’t panic so quickly for the Rules, (Civil Procedure Rules 2000) provide for a person to be served if he is living out side the jurisdiction. Foresight you might say, but it is necessary to have this avenue and not have to wait for the chance visit of the defendant to this jurisdiction. This is not confined to our jurisdiction alone. Other countries have similar provision. In fact service has been approved at the highest level. The Hague Convention speaks to service abroad of Judicial and Extra–Judicial documents in Civil or Commercial Matters. This was produced at The Hague on November 15, 1965 for countries to sign on to.

The Rules allow service of claim forms outside the jurisdiction provided (1) the matter falls under the list of (Rule 7.3) for example, claims about contract, in tort, property, trust among others and (2) where permission is obtained from the court.

The court must be approached by way of application supported by an affidavit. In his affidavit the applicant must state the grounds on which he is basing his application. The application must not be frivolous and must have a real chance of succeeding. The claimant must state the place where the defendant could be found, that is, an address must be given where he could be reached. The claimant must provide a draft order of what the defendant is required to do. This order would be approved by the judge to become the final order. For example, the order must state the time the acknowledgement of service is to be carried out and the time to file a defence. According to Part 9.3 of the Rules, an acknowledgment of service from a defendant served outside the jurisdiction must be made within 28 days of service of the document. This is a stark contrast to the 14 days when served within the jurisdiction. A defendant must be informed of the time he has to make his defence.

The defendant could ask the court to set aside service of the claim form if the service is not permitted under the Rule, that is, it is outside the list of Rule 7.3. The defendant can also ask to set aside if the claimant does not have a good cause of action or the matter is not a proper one for the court’s jurisdiction.

Rule 7.8 provides for the mode by which service of claim form could be made through foreign governments or judicial or consular authorities. The minister with responsibility for foreign affairs has authority to do so.

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

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