The way we operate as an economy has changed, but the business world has adapted and changed with it. The COVID-19 pandemic has forced all businesses to re-evaluate how they operate on a global level. Many businesses have responded by increasing their capacity to operate remotely, through the enhanced use of technology, social media and telecommunications. For law firms, providing support to their clients in the challenging times ahead is paramount. In order to do so, changes in the practical operation of the service of court documents is needed in Scotland in order to support the future needs of our clients.
This blog aims to address the changes in Scotland necessary to operate in “the new normal” of remote working in relation to service of court documents where personal service is not possible, due to “social” or physical distancing restrictions.
The current position
In Scotland, a court citation, or intimation of a court document, may be served by recorded delivery, or personally by a sheriff officer. With the current Government guidelines advising restrictions on social contact and enforcing social distancing, sheriff officers are restricted in terms of their ability to effect personal service in accordance with the Scottish court rules. One sheriff officer reported to my firm that he was told by a police officer that service of any type of money claim was not “essential”, under the Government guidelines.
It has long been the position that lawyers acting as agents for a client may accept service of court documents on their behalf, but in some instances (e.g. service of a summons or petition) this still requires the production of principal hard copy documents, and solicitors to meet face to face. Therefore, the flow of a court action may be disrupted significantly due to social distancing requirements. What will also likely be an issue going forward will be the service of court actions on individuals or businesses who are not legally represented, where recorded delivery service has provided ineffective and sheriff officers are unable to attend personally due to social distancing measures.
Service in England & Wales
In England & Wales it is possible to serve documents under the Civil Procedure Rules by “other electronic method”, which is largely taken to mean email (although are there are instances where documents have been served via other electronic means, such as Whatsapp and/or Facebook messenger, with the court's permission to serve in such a way being obtained beforehand). Electronic service of court documents, and acceptance of same, is commonplace in England & Wales. My firm would respectfully suggest that it is time that the court rules in Scotland are amended for service to be effected in Scotland in similar form.
Electronic service in Scotland?
The courts have already responded well in light of the COVID-19 situation in terms of their capacity to accept the lodging of documents in process via electronic methods. It would therefore seem a natural progression both to widen the range of documents that can be served electronically via agents and to allow the service of court documents via email on individuals and businesses who are not legally represented. It is not suggested there will be no place for personal service going forward, as there will continue to be those situations where a defender may seek to evade the service of a summons. However, it is suggested that Scotland brings its court rules into line with those of England & Wales, where service by electronic means is deemed effective service.
Naomi Pryde is head of Commercial Litigation in Scotland with DWF LLP, and is dual qualified in Scotland and in England & Wales