Debtors avoiding service: They can run, but can they hide?

Once legal proceedings are filed, it is a necessary part of the process to personally serve the debtor or defendant with the originating Court documents.

Once legal proceedings are filed, it is a necessary part of the process to personally serve the debtor or defendant with the originating Court documents (where the debtor or defendant is an individual, rather than a company). In most cases, a process server is engaged to effect service, either by visiting the defendant at their business or home address, or via other arrangements reached with them. In some cases, though, defendants can seek to avoid service, or cannot be readily located, which can cause significant delays and expense.

In such cases, plaintiffs may consider applying for orders for substituted service, to overcome the impracticality of personal service in certain circumstances.

What is Substituted Service?

Substituted service refers to an alternative means of serving a defendant with documents, other than to do it in person. Tribunals and Courts have fairly wide discretion as to what type of substituted service they can allow and provide orders for, as long as the plaintiff can show that the suggested alternative means of service will result in the documents ultimately reaching the defendant, whether that be by way of post, fax, email, or leaving the documents with another person or entity who are able to deliver them to the defendant.  

How To Apply for Substituted Service

Substituted service is made via an application to the tribunal or Court seeking particular orders as to an alternative form of service, accompanied by an affidavit in support of the application. Typically, the supporting affidavit would exhibit and refer to the attempts by process servers who had previously tried unsuccessfully to locate or serve the defendant. The supporting affidavit should also contain evidence to demonstrate how the suggested alternative means of service would successfully result in the defendant obtaining the documents. For instance, if it can be shown that the defendant regularly utilises their email address, or is known to reside with another family member, then that would be detailed in the affidavit to persuade the tribunal or Court to bypass the ordinary requirements of personal service in that instance.  

What The Plaintiff Must Show

Where possible, the following information should also be included in the supporting affidavit to the application seeking orders for substituted service.

  •       The defendant’s last known address;
  •       The defendant’s occupation and their last known business address or last known place of employment;
  •       The defendant’s previous addresses where service had previously been effected;
  •       Details of all enquiries and attempts made to locate the defendant (e.g. searches of databases, telephone directories, social media footprints);
  •       Details of reasonable, genuine and exhaustive attempts to serve the defendant;
  •       Details of any conversations with anyone at the defendant’s last known home or work address; and
  •       All other circumstances that would justify an order for substituted service.

What Are Some Alternative Methods of Service?

You must be able to demonstrate to the tribunal or Court that the alternative service method will bring the documents and proceedings to the attention and knowledge of the defendant. The method of substituted service sought will vary depending on the circumstances of each particular case.

Modes of substituted service may include the following.

  •       Posting the documents to the defendant’s address;
  •       Leaving the documents at an address known to be the address of the defendant;
  •       Emailing the documents to the defendant;
  •       Serving someone else in the place of the defendant, to whom the defendant is closely connected – this can include a spouse, family member or solicitor.

In a nutshell

An application for substituted service is a largely evidence-driven application and each case will be determined by its own unique facts and circumstances. The supporting affidavit material must address all of the relevant criteria that need satisfying, otherwise the tribunal or Court may determine that there is insufficient evidence before it upon which to grant the requested orders. Should that occur, the plaintiff would then be at liberty to make further exhaustive attempts to personally serve, or at least locate the defendant, with a view to making a subsequent application for substituted service based on that further evidence collated.

It is important to ensure that an appropriate alternative method of service is provided to the tribunal or Court which ensures that the documents and proceedings will come to the defendant’s attention. While it does not circumvent the ordinary legal requirements for personal service, it does provide scope for service in situations where it would otherwise be impracticable.

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