If making the decision to commence legal action in the civil courts was not difficult enough, litigants who eventually take that step often face the additional issue of trying to locate the defendant to serve him with the court documents. This can prove to be very challenging as care must be taken to ensure that there is no room for the defendant to complain that he was not properly served.
Although there are some cases in which there may be no need to serve court documents on anyone, these are rare. In the majority of cases, the court's rules require that the documents be personally served on the defendant; so the first attempt is usually made to locate and deliver the documents directly to the defendant and the process server is instructed to drop the documents at the defendant's feet if he refuses to take them in his hands.
Outside of the best case scenario, there are many situations in which alternatives have to be employed or applications have to be made to the court for orders for substituted service. For example, the process server may visit the defendant's home address only to be told that he is at work. Provided the person who gives the process server that information identifies himself and indicates that the defendant will return home, the process server may leave the documents with that person if he feels confident that they will be brought to the defendant's attention.
There is an obvious risk inherent in that approach, as the person may not give the documents to the defendant. For this reason, the process server may be well advised to make a further attempt to either serve the defendant at his place of work or return to the home when it is likely that he will be present. Ideally, the alternative should be employed after attempts at personal service have failed.
If the defendant cannot be located, but there is information that there is someone who may know how to locate him and bring the documents to his attention or there is reasonable certainty that the defendant is a resident in a particular area, an application can be made for substituted service. Such an order may allow the claimant to serve the court documents on an individual or a company or by placing an advertisement in a newspaper which has circulation within the area in which the defendant may be found. (Substituted service is often sought in insurance matters in Jamaica where the insurance company is served with court documents on behalf of the insured.)
Some jurisdictions, including Jamaica, already facilitate service via electronic methods, such as facsimile, but more creative methods are now being used, such as service via social media sites. Examples of this approach can be found in Australia, New Zealand, Canada and England, with the first dating back to 2008. In the cases identified, the success of the method of service was lauded, as the intended recipient responded within minutes after the message was sent.
Clearly, the need for caution cannot be overstated; and any court making such an order would first need to be satisfied that the claimant has actually identified the intended recipient as the defendant. Otherwise, service could be effected on the wrong person. Even more interesting was the approach adopted by a judge in England who allowed an injunction to be served on an anonymous twitter account user via a twitter direct message. There was no need to confirm the identity of the defendant.
This use of technology is admirable and, if service by social media becomes increasingly acceptable, it may be cheaper than having to hire process servers. However, it is unlikely to replace the more conventional methods of service in the short term.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send your comments and questions to firstname.lastname@example.org or email@example.com on twitter @lawsofeve.