1.
Introduction
Service of documents is a particularly sensitive area. It is sometimes essential that documents are served upon the other party personally, but this could inflame the situation and be counter-productive to the aims and ethos of the Resolution Code of Practice.
This guide looks at these issues and ways in which service of documents can be achieved in a constructive way to avoid increasing the acrimony between the parties.
2.
Timing
2.1 Service of documents should take place as soon after issue of the application or order as is possible and reasonable.
Delaying service until nearer the hearing date and therefore giving the recipient less time to prepare or seek legal advice is bad practice unless it can be justified with a good reason, such as a strong likelihood of settling the matter without the hearing, or other proceedings or action.
2.2 Personal service at a weekend or just before a national holiday or religious festival should be avoided unless it is absolutely necessary.
This not only prevents the recipient from getting legal advice upon receipt of the papers but may also increase their anxiety and anger about the application because they are unable to discuss it rationally with their lawyer straight away.
If deadlines for responses have to be given then adequate time for obtaining legal advice, information or copy documents should be allowed between the date of service and the deadline. If there is a delay between a letter being dictated and it being sent out then any deadline should be adjusted accordingly.
2.3 The client should be asked if they are aware of any times when it would be insensitive to serve the documents, such as birthdays or anniversaries, examinations, stressful hospital
appointments or when there has been a close family bereavement. Efforts should be made to avoid any such sensitive times for service.
2.4 Service of documents should not take place at the time of the recipient’s contact with the children, or at any time when the children are in the vicinity, unless there is no reasonable prospect of service at any other time.
It will be upsetting and bewildering for the children and they may witness an emotional outburst from their parent. This may also lead to further anger and resentment from the recipient and will heighten the tension and the level of dispute.
2.5 If the parties are engaged in a non-court based process such as mediation or collaborative law, the question of service of the divorce petition may be addressed within that setting and, if agreed, service may be effected at one of the meetings.
3.
Prior warning
3.1 If the other party has instructed a solicitor, most applications and orders can be served upon their legal representative. If they are on the court record as representing the other party they should always be served with the papers. If not, they may still be willing to accept these if their client agrees, and so you should always check.
Service through the DX system or by fax may be acceptable. The rules are set out in Practice Directions 6A to the Family Procedure Rules 2010.
It is good practice to send a letter before issuing the proceedings to warn the other party and their lawyer of the application being made.
3.2 If the other party is unrepresented, it is also good practice to write to them forewarning them of the application being made and recommending that they see a lawyer. Unless informing them of the need for personal service is likely to be counter-productive, the fact that the papers have to be handed to them personally can be explained together with the fact that their lawyer may be able to accept the papers on their behalf. Alternatively, they can be asked if they will be willing to meet with you or with the process server so that the papers can be handed to them.
3.3 It may not always be appropriate to give forewarning of service of the documents if they have to be personally served on the other party. This might be because of the risk of evading service, the risk of violence, because there are proceedings in another jurisdiction which might be prejudiced, or because injunctive relief is sought or other without notice application is being made.
4. Use of process servers
4.1 Choose a reputable enquiry agent or process server. You can check whether they belong to a professional association via the internet and should check what assurances they offer regarding sensitivity.
4.2 It is good practice to ensure that the enquiry agent or process server is aware of the sensitivities of service of documents in family proceedings. Most experienced ones are, but if instructing a new enquiry agent or process server, consider providing them with a copy of this Good Practice Guide.
4.3 The lawyer should discuss with the client the most appropriate time and place for service and the process server should be notified of this, rather than leaving it to their discretion.
4.4 The process server should be warned of any likelihood of violence from the recipient or whether they may try to evade service.
4.5 The process server should be provided with a recent photograph of the recipient, their mobile telephone number and the make and registration number of their vehicle, if applicable.
4.6 The process server should be given a covering letter addressed to the recipient to list the documents being served, and state the urgency and the importance of taking legal advice. The letter should also incorporate, word for word, the warning from the court order of being in contempt of court. Care needs to be taken when drafting this letter to get the tone correct and ensure that there is no misrepresentation of the effect or the content of the orders.
4.7 It is good practice to provide the client’s telephone number to the process server, if the client agrees, so that they can be notified when service has taken place, if it is outside office hours.
4.8 You should make clear to the process server what proof of service you require so that there is no danger of the court being dissatisfied about service and causing your client cost, delay and inconvenience or even exposure to danger.
4.9 Family members should not be used to effect service of documents except in very exceptional circumstances. One party to family proceedings should not serve another party.
5.
Venue for service
5.1 The impact of the venue for service can have repercussions on the rest of the case and on family relationships generally, so should be considered with care. Effecting service at a place of employment, at a social gathering or at a religious meeting place could cause embarrassment or offence and so should be avoided if possible. If this is necessary service should be as discreet as possible.
5.2 The process server should be encouraged to call the recipient on their mobile phone number and ask to meet unless this is likely to give the recipient the chance to evade service.
6. After service
6.1 If the recipient is legally represented it is good practice to send a copy of all the papers to their lawyer immediately after service has been effected if it was not appropriate to send them before. These should be sent by the quickest means possible so that the lawyer can properly advise their client about the contents, to avoid misunderstandings and inappropriate responses.
6.2 When serving a non-molestation order it is good practice to lodge not only a copy of the order with the police station but also a copy of the application and the statement in support. If there is any breach of the order, the police will have background information and will not treat the incident breaching the order in isolation of everything else that may have occurred.
Note
1. This is good practice guidance and does not and cannot affect any obligations in law, specific court orders or rules of professional practice.
absolute rule. The special facts of a case may require and/or justify departing from these guidelines.
3. This guidance applies to all family law cases for the better conduct and approach to resolving family breakdown issues and not just to cases between Resolution members.
4. This guidance is endorsed by the two leading associations of private investigators, the Association of British Investigators (www.theabi.org.uk) and the Institute of Professional Investigators (www.ipi.org.uk).