Technology has become an integral tool in how people work and communicate with each other. With eSignature becoming the new way to sign legally binding documents, it is no surprise that electronically serving court documents has also risen in recent years. However, serving court documents electronically is only available in certain circumstances.
How To Serve Court Documents to Initiate Proceedings
The term ‘service’ describes the delivery of court documents from one party (the plaintiff or applicant) to another (the defendant or respondent). The service of court documents concerns the service of documents that form part of the ‘originating process’. Originating process documents are documents that commence proceedings against a party, i.e. statement of claim or a summons.
So, lets say you wish to commence proceedings against D. You and your legal representation will first filed an originating process with the Court, either by way of statement of claim or a summons. The documents must then be served on D. This is because the service of court documents acts as allows D to receive notice of the proceedings being initiated against them.
Personal Service of Court Documents
The Uniform Civil Procedure Rules sets out many rules surrounding the service of these documents. Very generally, service of an originating process document must constitute ‘personal’ service. However, there are a few exceptions that apply.
Personal service is simply the physical act of personally locating the person or party concerned, and handing them the court documents. The person doing the physically serving of the documents must explain what the documents are. However, personal service is not always practicable. If service is not practicable, then the Court may order the party ‘substituted service.’ This is where electronic service will become an option.
How To Serve Court Documents Electronically To Initiate Proceedings
Originating process documents can be served electronically:
- (a) Where personal service is impracticable or,
- (b) Where the other parties solicitor accepts this method of service.
(a) Where Personal Service Impracticable
As seen above, the service of originating process documents must constitute personal service. However, there are certain circumstances where personal service is not practicable. Where personal service is impracticable, the court may order ‘substituted’ service and therefore electronic service. Thus, the only way in which electronic service will be acceptable is where personal service will be impracticable. Personal service will be impracticable when the intended recipient cannot be physically located, or is evading service.
Electronic Service of Court Documents is Acceptable if:
(1) Personal service has been attempted,
(2) Personal service has failed to notify the other party of the proceedings,
(3) A list of alternative methods must be provided, including electronic serve and,
(4) These alternative methods, including electronic serve, must be able to effectively notify the other party.
Each of the four factors must be established in order to persuade the Court that electronic service is an appropriate substitute to personal service.
Popular Forms of Electronic Service
There are many different way in which electronic service can be a valid substitute for personal service, including service by way of:
- Email,
- Social media and,
- Cloud services.
However, in order to serve electronically using these methods there must be proof that the party regularly uses their email address and/or social media account.
(b) Where Accepted by a Solicitor
Alternatively, if the other parties legal representation agrees that they will accept the originating process documents, on behalf of their client, then this will also constitute a valid service. Electronic service is available in these circumstances. However, the electronic service can only occur by way of email address service. Thus, documents served on to the solicitors email address will constitute valid electronic service.
Final Thoughts:
Electronic service of court documents is an acceptable means of service. Proceedings that are only beginning require that the documents constitute ‘personal service’. However, personal service can deemed to be impracticable when it is difficult to physically locate the intended recipient. In these circumstances, electronic service can replace the need for personal service. Alternatively, electronic service is acceptable when the recipient’s solicitor agrees to it.
