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COVID-19: Service of documents

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By David Hitchcock

Following the outbreak of COVID-19, the majority of business premises, including registered offices, are now closed and a large proportion of employees are working from home. This raises two obvious questions; what if I wish to serve a document on a third party? And, what if a document is sent to a vacant office?

These questions can be relevant in a number of contexts; most obviously court proceedings – where documents need to be formally served – and under contracts, legislation or other agreements which provide for notices to be served. Missing documents which have been served on you – or failing to serve notice correctly in strict timelines – can have disastrous consequences and multiple knock on effects.

Can a court document be served properly on a closed office?

Companies can be served at their registered address or any place of business that has a connection to the claim in question. The rules which govern legal proceedings in England and Wales set out provisions that documents are “deemed” served on a recipient at certain specified times, provided they are sent by certain specified methods.

So, for example, if a Claimant wishes to serve a claim form in court proceedings, and he sends that claim form by first class post, the document is deemed to have been served on the second business day after posting the document. Crucially, for the purposes of those rules, the relevant action is posting the document – whether or not the recipient actually receives the document.

In the absence of updated guidance from the Courts Service, court documents are still considered validly served even if they have not come to the attention of the recipient.

Whilst we hope that most courts would take a lenient view if a recipient was sent a document that was not actually received for some time because of Covid-19, that cannot be guaranteed. It is likely that even in those circumstances, a court would expect any business to have taken reasonable steps to monitor post and any party would be best advised to try to mitigate against the potential of missing documents, as much as possible, rather than hoping that the courts will be lenient on any sanctions for not adhering to deadlines.

What about other notices?

Whether or not other types of notices and documents (so those which aren’t governed by the court rules) are validly served will depend on individual circumstances and the instruments which allow service to take place. However, we anticipate that many notices will be subject to similar analysis as above – in other words, that many notices will be validly served on posting, rather than actual receipt.

If you anticipate that you may be served with a notice during the current crisis, or wish to serve such a document, please contact us immediately and we would be happy to discuss the individual circumstances of your case.

Can documents be served by email?

Again, there is a distinction between documents served under the Court rules and other documents or notices (those served under contracts or leases, for example). 

In relation to court documents, the rules provide that some documents can be served by email, but only where the recipient has previously indicated that they will accept service by email. That usually means they need to have expressly agree to it, but in some cases their consent can be implied. If you have any doubt about this, we recommend you seek advice.

In relation to other documents, once again whether service can take place by email will depend on the instrument under which the document is served. Most statutory notices do not provide for service by email. Some contracts, especially modern ones, might; although the practice is still usually for those contracts to provide that a hard copy is served with an additional copy sent by email. Check your contract, lease or other agreement for more details and, once again, if in doubt, ask for advice.

On return to the office I have received notice that a claim was started against me, time has run out to respond and judgment has been entered against me, what can I do?

If, due to the closure of your office, you were unaware of a claim form having been served, there is a risk that “judgment in default” could be made against you. However, the court rules allow such judgments to be set aside, in some circumstances, where there is “good reason” to do so. Every case will be different, but there will at least be scope to argue that Government advice to work from home and avoid all but essential travel may be considered such “good reason”.

It is imperative that on return to the office the identification of any court documents is prioritised and prompt application is made to set aside any default judgment. You should seek advice immediately if you believe you are in this situation as delay can prejudice your position.

Depending on the nature and size of your business the courts may take differing views. For example, a large corporation may be expected to deal differently to a sole trader. Regardless of your size, however, do all you can now to avoid having to face these issues.

I have been served with a notice and the time to respond has expired, what should I do?

Whether you can rescue the situation will depend on what notice you receive and the regime underpinning it. However, in most cases, if relief is available, you will be expected to act promptly. As with court documents, act fast if you find yourself in this situation and seek advice as soon as you can.

  • Consider re-directing post to a new address (although, be wary of the fact that the postal system is likely to be unusually busy, and may have greater processing times than normal).

  • Routinely visit business premises to check for post, so far as you can. Record what you find, so that you can prove when a document was received if necessary.

  • Carefully consider any notices or documents you are likely to receive over the coming months, and plan as best you can to ensure they come to your attention.

  • Leases often provide for notices to be served. Contact your landlord (or tenant) to ensure they have up to date contact details.

  • If you are a party to court proceedings, consider agreeing with your opponent that all documents will be sent and received by email only, at least for now.

Is the Government likely to legislate on this issue?

There has been no indication as yet that the Government is set to change any of the above. However, there is historic precedent for deadlines (including court and statutory deadlines) to be suspended in times of crisis. It is possible that the Government will consider doing so at this time, but no changes have come into place yet.

For further information, please contact david.hitchcock@twmsolicitors.com

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