Are you being served?

January 6, 2009

Since its inception, the world wide web has innovated countless novel business and social practices. Amongst the most popular is the ability to re-unite and keep in touch with long-lost friends via Facebook. The drawback to this is being poked by that one person you thought that you would never have to see again.

This was the case for Carmel Corbo and Gordon Poyser, an Australian couple, against whom a Court judgment had been successfully obtained by their former mortgage provider, MKM Capital, after they had defaulted on an AUS$150,000 loan.

In order to obtain a Court order to enforce the judgment, MKM Capital’s lawyers were required to serve papers on Corbo and Poyser, but despite repeated attempts to do so by conventional means, it appeared that Corbo and Poyser had disappeared without a trace. It was at this point, that MKM Capital’s lawyers hit upon the novel idea of serving the errant couple using Facebook. In a legal first, David Harper, a Supreme Court judge in the Australia Capital Territory ruled that service using Facebook was valid.

It is unlikely that the English Courts will make a similar ruling. The Court Rules governing service of documents were changed on 1 October 2008. In essence, effective methods of service in England & Wales are limited to personal service, first class post, document exchange or any other postal service that provides for delivery on the next business day, or leaving the document at a specified place. Service can be effected by fax or other electronic means if the permission of the other party has been obtained to use this method before effecting service of the document.

If, like Corbo and Poyser, the party to be served appears to be evading service, an application should be made to the Court for an order to serve by way of a method or at a place which is not ordinarily permitted by the Court Rules. The Court has the discretion to grant permission in advance of service or retrospectively. However, the applicant would have to show a good reason, supported by evidence, why an alternative method should be permitted. If you are served with Court documents, it is important to acknowledge service, to avoid having a default judgment obtained against you, and to seek legal advice as soon as possible.

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