Making sure that justice is served
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26 February 2013
Serving subpoenas can be a dicey business, but as well as courage the ideal process server must also possess a good measure of nous and sensitivity, says Linda Tsang. Linda Tsang is a freelance journalist.
The image of the process server risking life and limb to serve papers on debtors or violent spouses may be a stereotype. It is also, fortunately, a rare occurrence provided both the instructing solicitor and the server have done their jobs properly.
As the circumstances where process servers are instructed tend to be extreme ones, from domestic violence proceedings injunctions to Mareva injunctions and debt recovery court orders, both instructing solicitors and process servers should build up and maintain a professional relationship.
The first step towards forging that relationship is finding a reputable firm of process servers. There are a number of pointers to finding one, such as checking whether the firm has sufficient professional indemnity insurance. It is also useful to check whether the firm is registered under the Data Protection Act and the Office of Fair Trading neither of which is compulsory but is an indication of professionalism. If the work involves what is known as debt counselling, then the Consumer Credit Act provisions will also be relevant.
There are a number of associations of which the investigation and process server firm may be a member. The Association of British Investigators has a code of conduct which binds its members and it also carries out its own disciplinary proceedings, but membership is not compulsory. Other voluntary organisations include the Association of Investigators and Process Servers, the Merseyside Association of Investigators and Process Servers, and the Northern Association of Investigators and Process Servers which also has a code of conduct it enforces. At present there is not an umbrella organisation which polices the work of process serving firms, but there have been moves for such a group, as well as for firms to be licensed and/or brought under the control of the courts in the same way as bailiffs currently are.
As with any professional services, solicitors should do their homework. It is often word-of-mouth recommendations that lead you to a good firm, as well as personal experience. Any queries regarding, for example, the firm's knowledge of the rules of service by which it is bound or whether its staff are properly trained should be sorted out at the beginning, as should the basis on which the fees are calculated be it on a time and mileage basis or a set fee.
In the more sensitive areas, it is advisable for solicitors to stress that the brief is not necessarily driven by results. For example, if papers have to be served in the case of a child abduction, the instructing solicitor has to ensure that the matter is handled in a sensitive way. Both the solicitor and its clients can be criticised in court if the judge considers that matters have not been properly handled. Solicitors have an obligation to the court to ensure that court rules are followed at all times.
To avoid this happening, solicitors should provide a full letter of instruction asking for an affidavit from the server which confirms the circumstances of service of a particular document. With costs being a major consideration whether the client is a private one or legally aided there should be a costs and time limit agreed, as well as a request for regular updates if costs are likely to escalate.
As service often has to be done urgently and at a premium, the instructing solicitor should ask to be kept up to date. The instructing solicitor's list of wants includes process servers with mobile phones, availability at all hours, approachability and their willingness to come to the office to collect the documents where it is possible and practicable.
The firm in question should also have sufficient resources to deal with the urgency and logistics of service, which could be anywhere in the UK and beyond, so solicitors should investigate whether the firm has a nationwide practice and can provide its services either in-house or, if not, through reputable associates or sub-contractors further afield.
Ideal process servers have to be able to think on their feet and have some nous. They must be individuals who cannot be intimidated and who are not themselves threatening threatening behaviour can aggravate what is often already a difficult situation. They should also be up to date on all the changes to the relevant rules of service and what is acceptable.
From the process server's point of view, all relevant information should be given to them as soon as possible even information which may seem irrelevant or easily available already. This can range from photographs to car registration number, model and colour to work and home telephone numbers. It is also useful to provide extra copies of the documents to be served.
Obviously once the relationship has been built up between the legal practice and the investigation firm, the solicitor will eventually be able to trust the servers to do their job without too much interference.
The process server and solicitor should document and record everything so that there are no queries if service becomes an issue later in litigation.
In such a specialist niche field of investigative work, there have been some interesting trends and developments.
One growth area is where doctors and consultants are increasingly being served up to a year in advance to appear in court as expert witnesses to ensure that they will be there to give their evidence.
Another cunning ploy in the use of witness subpoenas is where one side, knowing that the other side wants to call a vital witness, will subpoena the witness themselves and notify the other side that they have done so; the subpoenaing side will then notify the witness the day before the hearing that his evidence is no longer needed, so that the other side has lost a valuable witness.
A more cautionary tale to remind both the solicitor and process server that proper identification is paramount is one incident where the court documents were handed to the wrong person who then refused to give them back.