Naomi Pryde

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 us 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 (eg service of a summons or petition) this still requires the production of principal hard copy documents and requires 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, and where recorded delivery service has provided ineffective and Sheriff Officers are unable to attend personally due to social distancing measures.

The position of service in England and Wales

In England and 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, e.g. WhatsApp and / or Facebook Messenger, with the court’s permission of serving in such a way being obtained before-hand). Electronic service of court documents and acceptance of same, is common place in England & Wales.

Electronic Service in Scotland – a new way forward

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 to both 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 that 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 respectfully suggested that it is about time Scotland brings its court rules into line with those of England & Wales, where service by electronic means is deemed effective service.

Naomi Pryde is a partner at DWF