Guide to Good Practice Service of documents - Resolution

1 2016. Guide to good Practice : Service of documents This Guidance was revised in November 2016. The law or procedure may have changed since that time and members should check the up-to-date position. Resolution Guide to good Practice : Service of documents 1. Guide to good Practice on the Service of documents Introduction Service of documents is a particularly sensitive area. It is sometimes essential that documents are served upon the other party personally, but this could inflame the situation and be counterproductive to the aims and ethos of the Resolution Code of Practice .

2 This Guide looks at the issues and ways in which Service of documents can be achieved in a constructive way, in order to avoid increasing the acrimony between the parties. Timing Service of documents should take place as soon after issue of the application or order as is possible and reasonable. Delaying Service until nearer the hearing date and therefore giving the recipient less time to prepare or seek legal advice is bad Practice , unless it can be justified with a good reason, such as a strong likelihood of settling the matter without the hearing, or other proceedings or action.

3 You must give sufficient notice of hearings in accordance with the Family Procedure Rules. Personal Service at a weekend or just before a national holiday or religious festival should be avoided unless it is absolutely necessary. Serving at such times prevents the recipient from getting legal advice immediately and may increase their anxiety and anger about the application because they are unable to discuss it rationally with their lawyer straight away. If deadlines for responses have to be given, then adequate time for obtaining legal advice, information or copy documents should be allowed between the date of Service and the deadline.

4 If there is a delay between a letter being dictated and it being sent out, then any deadline should be adjusted accordingly. The client should be asked if they are aware of any times when it would be insensitive to serve the documents , such as birthdays or anniversaries, examinations, stressful hospital appointments or when there has been a close family bereavement. Efforts should be made to avoid any such sensitive times for Service . Resolution Guide to good Practice : Service of documents 2. Service of documents should not take place at the time of the recipient's contact with the children, or at any time when the children are in the vicinity, unless there is no reasonable prospect of Service at any other time.

5 It will be upsetting and bewildering for the children and they may witness an emotional outburst from their parent. This may also lead to further anger and resentment from the recipient and will heighten the tension and the level of dispute. If the parties are engaged in a non-court-based process such as mediation or collaborative law, the question of Service of the divorce petition may be addressed within that setting and, if agreed, Service may be effected at one of the meetings (though note that it is not proper Service for the applicant to serve the respondent personally).

6 If you are serving applications or documents out of the jurisdiction, consider carefully Family Procedure Rule where relevant and the international conventions on Service of documents (for example, Council Regulation EC no 1393/2007 of 13 November 2007 on Service in the member states of judicial and extrajudicial documents in civil or commercial matters). See further the advice in the Guide to good Practice on International Issues. Prior warning If the other party has instructed a solicitor, most applications and orders can be served upon their legal representative.

7 If they are on the court record as representing the other party, they should always be served with the papers. If not, they may still be willing to accept these if their client agrees, and so you should always check. Service through the DX system or by fax may be acceptable. The rules are set out in Practice Direction 6A to the Family Procedure Rules 2010. It is good Practice to send a letter before issuing the proceedings to warn the other party and their lawyer of the application being made (save where an application needs to be made without notice or in a jurisdiction race situation where a letter before action should not be sent).

8 If the other party is unrepresented, it is also good Practice to write to them forewarning them of the application being made and recommending that they see a lawyer. Unless informing them of the need for personal Service is likely to be counterproductive, the fact that the papers have to be handed to them personally can be explained together with the fact that their lawyer may be able to accept the papers on their behalf. Alternatively, they can be asked if they will be willing to meet with you or with the process server so that the papers can be handed to them.

9 Resolution Guide to good Practice : Service of documents 3. It may not always be appropriate to give forewarning of Service of the documents if they have to be personally served on the other party. This might be because of the risk of evading Service , the risk of violence, because there are proceedings in another jurisdiction which might be prejudiced, because of a jurisdiction race or because injunctive relief is sought or other without notice application is being made. Use of process servers Choose a reputable enquiry agent or process server.

10 You can check whether they belong to a professional association via the internet and should check what assurances they offer regarding sensitivity. Instructions to the enquiry agent should be in writing. It is good Practice to ensure that the enquiry agent or process server is aware of the sensitivities of Service of documents in family proceedings. Most experienced ones are, but if instructing a new enquiry agent or process server, consider providing them with a copy of this good Practice Guide . The lawyer should discuss with the client the most appropriate time and place for Service and the process server should be notified of this, rather than leaving it to their discretion.