knowledge 23 June 2017 |

When Can You Use Substituted Service?

The rule on substituted service is commonly invoked but rarely critiqued.  The High Court rule¹ provides that if it is “made to appear to the Court that the plaintiff is from any cause unable to effect prompt personal service, …., the Court may make an order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise… Every application to the Court for an order for substituted or other service, or for the substitution for service of notice, shall be supported by an affidavit setting forth the grounds upon which the application is made.”

The approach in practice is that if a summons server makes three visits to the defendant’s address and is unable to serve the defendant, and it appears that the defendant ordinarily lives at the given address, substituted service will be allowed as a matter of course.  A plaintiff is usually allowed by a substituted service order to serve by registered post or ordinary post.  The courts have however taken account of developments in communications and often allow service by email. There are recent High Court decisions of Peart J in 2012 allowing service via Facebook and O’Hanlon J in 2014 allowing service via LinkedIn. Substitution for service of notice (eg advertising to the defendant that he is being sued) is permissible but very rare.

The summons server’s affidavit in a substituted service application usually says that he or she has “made local enquiries as to whether the defendant is in fact residing at the address in question”.  This is a somewhat oblique way of confirming, having checked with neighbours, that the defendant lives at the given address.  Neighbours are less likely to be co-operative if their details and their answers are likely to put on the court record.

In Gladney v Raymond,² Humphreys J in the High Court was asked whether the somewhat oblique formula commonly used is sufficient. He concluded that it is, for several reasons. First, on an interlocutory application, affidavit evidence including statements of the deponent’s belief (ie including hearsay) and the grounds of that belief is admissible:³ the grounds for believing that the defendant lives at the particular address are provided by having made enquiries with neighbours, but without requiring forensic detail of which neighbours were asked and what each said.  Secondly, having regard to what the court is being asked to do, there is “minimal actual gain for the court in having the granular detail before it” in a substituted service application.  Thirdly, the affidavit is potentially available to the defendant and a small minority of defendants may threaten or use aggressive tactics against those assisting plaintiffs; neighbours who assist summons servers in good faith should not be exposed to this risk, however small, indeed, the identity of such neighbours may be privileged. 

The court was satisfied that it is “generally inappropriate to identify particular neighbours as informants regarding a defendant's whereabouts”.   While careful to emphasise that there was no suggestion of any impropriety by the defendant in this case, the court also observed that any form of threat against summons servers or those assisting them in attempting to serve a process of a court should be regarded as contempt of court and dealt with accordingly.

This judgment helpfully explains why the practice in applications for substituted service is as it is. If a summons server is unable to serve the defendant having made three visits to the defendant’s address and is satisfied having made “local enquiries” that the defendant lives at that address, substituted service should be allowed. Applicants for substituted service should also consider the alternatives most likely to be effective, bearing in mind the courts are prepared to allow service by email and social media in appropriate cases.