Personal Service - still best practice for document service
Even with advances in technology and the ability now to easily communicate instantly with one another electronically across the globe, when it comes to legal matters and notifying parties of proceedings - personal service is still considered best practice.
There are times when alternative means of document service are acceptable - and it is important to have other methods available but the preference of the New Zealand Court continues to be personal document service.
Personal service ensures that all parties involved in legal proceedings have been notified accordingly.
In most cases once served there will be a set amount of time for the recipient to prepare a response. When other means of service are used you cannot ever guarantee that the intended recipient received the documents.
For example another common method of service is email. Once the documents are sent off into cyberspace how do you know if they were received and opened at the other end? We have a new eService available for our clients. It allows us to send documents securely through a portal and then track the time and date they are opened, leaving a digital audit trail, including the IP address of the recipient. So although not personal service - it is a step up from email - which can be hit and miss.
Personal service prevents court cases being held up with one party claiming they never received notification of the matter. An affidavit of service is often required to confirm that personal service took place and this makes it even more difficult for the recipient to claim no knowledge of the proceedings.
In most cases personal service is performed without any difficulty.
What is interesting is that some recipients think that by avoiding personal service they can also avoid a matter proceeding. Avoidance can be used to build a case allowing other methods of service to be used. Known as substituted service, this can be requested if a person actively avoids service and an alternative method can be demonstrated as being a likely way of getting the documents to the recipient. Methods of substituted service include handing the documents to a family member, affixing to a residence, sending digitally or via social media.
Last month we assisted a client who was representing himself and needed civil proceedings served personally on a family member. The Defendant actively avoided service. We recorded thorough details of all service attempts and were able to provide a detailed affidavit for the court to see our efforts to locate and serve the individual. We were also able to reference the Defendants Facebook page, confirming that they were regularly active in this space. The court made an order allowing the documents to be served by way of email and Facebook.
In the US some states consider personal service to include delivering documents to a person’s workplace and leaving them with a person in charge who is over 18! Or by leaving the documents with an adult member of the household such as a cohabitant, parent, or guardian.
We had an agent in California serve Family Proceedings for us and leave the documents with the partner of the Respondent. We had to ask them to go back and serve the Respondent personally, as initially requested, as we knew that the alternative method of service initially used would not be accepted by the New Zealand Family Court in this instance.
The definition of personal service in New Zealand
In New Zealand, personal service is just that. Handing the documents to the person to whom they are intended for. There are times when a solicitor may be able to accept on behalf of their client. In this instance we would usually get them to sign an acknowledgment of service confirming that they are authorised to do so.
Why is Personal Service so important in New Zealand?
New Zealand law requires that all individuals be notified of any legal proceedings involving them.
This is one of the principles covered by the rule of law that forms a significant part of the NZ Constitution.
And according to the Bill of Rights Act Section 24(a)
Simply put, everyone has the right to know when proceedings or criminal charges are being brought against them. No court proceedings or litigation can begin until all the parties have been notified via written documentation in a timely manner. Only then can the case proceed, and rulings be made.
Document service is only a small part of the process, but if done incorrectly the ramifications can be far reaching.
Personal service goes hand in hand with an airtight affidavit of service
It may seem more of an effort to arrange for personal service initially (especially if you know the recipient will make it difficult!). It is faster to just email (or post) details of proceedings. But if the other party does not respond, or turn up in court, and then denies ever receiving the notification, then time, and money, have been unnecessarily wasted.
To ensure your proceedings proceed unhindered personal service on all parties involved (or as directed by the court) is prudent, followed up with a supporting affidavit of service sworn by a professional process server. Then at no stage can the opposing party challenge the matter proceeding on the grounds of no notification.
Only recently we had a client call us the night before they were due in court – and they had misplaced the affidavit of service we had sent when the documents were served two months prior! They knew there was a good chance that the defendant would not show in court and an affidavit of service would be requested by the judge confirming the proceedings had been brought to the other party’s attention. The affidavit was urgently re-sworn, and hand delivered to the courthouse.
Because personal service is still regarded as best practice, you need a process server that has the experience and knowledge to ensure that it is completed correctly every time. At Docuserve our team understands the rules around personal service, what the courts will, and will not accept, so that our clients can move forward with proceedings with confidence.