Making service work: the trials and tribulations
A recent High Court judgment illustrates the potential perils of serving claims personally. In North Warwickshire Borough Council v Aylett and others  EWHC 2458 (KB) (12 September 2022) the Court held that service of an injunction had not been validly effected where it was not clear that the process server had handed the documents to the recipients or left the documents sufficiently close to them.
This case related to protests against the use of fossil fuels at a large oil terminal near Tamworth in Warwickshire. The local council sought – and was granted – an interim injunction against the protesters to protect the site. The injunction prohibited them from continuing with the protests and included a penal notice. The council attempted to serve the injunction on the protesters, including the defendants. However, the protestors remained at the site. The Council applied to commit them for contempt of court for breaching the injunction. The question arose of whether the defendants had been validly served with the injunction.
The High Court undertook a detailed assessment of what had happened when the process server attempted to serve the injunction. It concluded that one of the defendants had been personally served. This was because he had spoken directly with the process server at the entrance to a tunnel dug by the protesters, had been handed a copy of the injunction and was told the nature of the documents. However, the Court was not persuaded that the other two defendants had been personally served. This was because they were further inside the tunnel, were not handed any documents by the process server and there was no evidence that the process server had directed any conversation to them or was even aware of their presence in the tunnel. As a result, the contempt application failed against them for want of service.
This latest case on personal service highlights the potential practical difficulties of serving on individuals in person. While most defendants in civil cases are not inhabiting tunnels, it is not uncommon for there to be practical difficulties when attempting personal service. The serving party might have difficulty identifying or locating the intended recipient. A savvy recipient might try to avoid being presented with documents.
In addition to personal service, there are a range of available methods for effecting service in civil claims (differing slightly depending on whether the document being served is a claim form), including post and various means of electronic communication.
Problems can arise with other forms of service as well. For example, a defendant may attempt to restrict access to its premises. If it is foreseen that there are obstacles that may prevent effective service by the usual methods, an order for alternative service should be sought in good time. The English courts have been pragmatic in appropriate cases and have even been prepared to allow service by voicemail, text message and WhatsApp where there are no practical alternatives.
When using an external provider (such as a process server) to carry out service, care should always be taken to provide detailed instructions setting out what the server must do, at a minimum, to effect service, including contingencies, details of who to contact in the event of unexpected issues and any deadlines for service to take place. For example, the server should be told whether service can be re-attempted at an alternate time or place where it is more likely to be effective. It is also prudent to carefully document the process and record evidence demonstrating how service has been carried out. The arrangements with the provider should cover any potential extra time and costs that might be incurred by the provider if service is not straightforward.