Part 5 – Service of Claim Form within Jurisdiction

Service of claim form – normal method

5.1

1. The general rule is that a claim form must be served personally on each defendant.
2. The Chief Justice may by practice direction authorise the use of electronic means of communication (including FAX and e-mail) for service of a claim form.

            • Part 6 deals with service of other documents.

Statement of claim to be served with claim form

5.2

1. The general rule is that the claimant’s statement of claim must be served with the claim form.
2. The claim form may be served without the statement of claim in accordance with rule 8.2.
3. In this Part reference to service of the claim form requires that –
   1.  the statement of claim; or
   2. if these Rules so require, an affidavit or other document;
   3. a copy of any order that may have been made; and
   4. a copy of any order or application made under rule 8.2;
      must be served with the claim form unless the statement of claim is contained in the claim form.

Method of personal service

5.3

A claim form is served personally on an individual by handing it to or leaving it with the person to be served.

Permitted place of service

5.4

Except as permitted by Part 7 (service out of the jurisdiction), a claim form must be served at a place within the jurisdiction.

Proof of personal service

5.5

1. Personal service of the claim form is proved by an affidavit sworn by
   the server stating –
   1. the date and time of service;
   2. the precise place or address at which it was served.
   3. the precise manner by which the person on whom the claim form was served was identified; and
   4. precisely how the claim form was served.
2. If the person served was identified by another person, there must also
   be filed where practicable an affidavit by that person –
   1. proving the identification of the person served; and
   2. stating how the maker of the affidavit was able to identify the person served.
3. If the server identified the person to be served by means of a photo­graph or description there must also be filed an affidavit by a person –
   1. verifying the description or photograph as being of the person intended to be served; and
   2. stating how the maker of the affidavit is able to verify the description or photograph as being of the person intended to be served.

Service on legal practitioner

5.6

If a legal practitioner –

1. is authorised to accept service of the claim form on behalf of a party; and
2. has notified the claimant in writing that he or she is so authorised; the claim form must be served on that legal practitioner.

Service on limited company 

5.7

Service on a limited company may be effected –

1. by leaving the claim form at the registered office of the company;
2. by sending the claim form by telex, FAX or prepaid post or cable addressed to the registered office of the company;
3. by serving the claim form personally on an officer or manager of the company at any place of  business of the company which has a real connection with the claim;
4. by serving the claim form personally on any director, officer, receiver, receiver-manager or liquidator of the company; or
5. in any other way allowed by any enactment.

Service on firm or partnership

5.8

1. Service on a firm or partnership may be effected –
   1. by serving the claim form personally on a manager of the firm at any place of business of the firm or partnership which has a real connection with the claim;
   2. serving the claim form personally on any partner of the firm;
      or
   3. in any other way allowed by any enactment.
2. If the claimant knows that a partnership has been dissolved when the claim is issued, the claim form  must be served personally on every person within the jurisdiction whom the claimant seeks to make    liable.

Service on body corporate 

5.9

1. Service on a body corporate (other than a limited company) may be effected –
   1. by sending the claim form by prepaid post to the principal office of the body corporate;
   2. by serving the claim form personally on any principal officer of the body corporate;
      or
   3. in any other way allowed by any enactment
2. In this rule –
   “principal officer” means the mayor, chairman or president of the body, or the town clerk, chief executive officer, clerk, secretary, treasurer or other similar officer of the body.
   • Rule 59.2 deals with service on the Crown.

Service on minors and patients

5.10

1. Paragraphs (2) to (5) specify the persons on whom a claim form must be served if it would otherwise be served on a minor or patient.
2.  A claim form which would otherwise be served on a minor who is not also a patient must be served on –
   1. one of the minor’s parents or guardians (including in Saint Lucia the curator appointed under the Civil Code (Cap 242)); or
   2. the person with whom the minor resides or in whose care the minor is, if there is no parent or guardian.
3. If a person is authorised under any relevant enactment to conduct the proceedings in the name of the patient or on the patient’s behalf, a claim form must be served on that person.
4. If there is no person so authorised, a claim form must be served on the person with whom the patient resides or in whose care the patient is.
5. The court may make an order permitting the claim form to be served on the minor or patient, or on some person other than the person specified in paragraphs (2) to (4).
6. The court may order that, although paragraphs (2) to (4) have not been complied with, the claim form is to be treated as properly served.
7. An application for an order under paragraph (5) or (6) may be made without notice but must be supported by evidence on affidavit.
   • Part 23 deals generally with parties who are minors or patients.

Proof of postal service

5.11

1. Service by post is proved by an affidavit of service by the person responsible for posting the claim form to the person to be served.
2. The affidavit must exhibit a copy of the claim form and state the –
   1. address to which it was sent; and
   2. date and time of posting.

Proof of service by electronic means

5.12

1. Service by electronic means is proved by an affidavit of service by the person responsible for transmitting the claim form to the person to be served.
2. The affidavit must exhibit a copy of –
   1. the document served;
   2.  any cover sheet or email to that document;
   3. the transmission record; and
   4.  proof of electronic service of the document, and must state the –
      1. electronic means by which the document was served;
      2.  e-mail address or FAX number to which the document was transmitted; and
      3. date and time of the transmission.
3. Electronic confirmation of delivery may be treated as proof of service for a document that is served electronically and may include a written e-mail response, a read receipt, a successful FAX transmission notification or an automated response that a document was posted in an online shared drive.

Alternative methods of service

5.13 

1. Instead of personal service a party may choose an alternative method of service.
2. Where a party –
   1. chooses an alternative method of service; and
   2. the court is asked to take any step on the basis that the claim form has been served;
      the party who served the claim form must file evidence on affidavit proving that the method of service was sufficient to enable the defen­dant to ascertain the contents of the claim form.
3. An affidavit under paragraph (2) must –
   1. exhibit a copy of the documents served;
   2. give details of the method of service used;
   3. show that –
      1. the person intended to be served was able to ascertain the contents of the documents; or
      2. it is likely that he or she would have been able to do so; and
   4. state the time when the person served was or was likely to have been in a position to ascertain the contents of the documents.
4. The court office must immediately refer any affidavit filed under paragraph (2) to a judge, master or registrar who must –
   1. consider the evidence; and
   2.  endorse on the affidavit whether it satisfactorily proves service.
5. If the court is not satisfied that the method of service chosen was sufficient to enable the defendant to ascertain the contents of the claim form, the court office must fix a date, time and place to consider making an order under rule 5.14 and give at least 7 days notice to the claimant.

Power of court to make order for service by specified method

5.14 

1. The court may direct that a claim form served by a method specified in the court’s order be deemed to be good service.
2. An application for an order to serve by a specified method may be made without notice but must be supported by evidence on affidavit –
   1. specifying the method of service proposed; and
   2. showing that that method of service is likely to enable the person to be served to ascertain the contents of the claim form and statement of claim.

Proof of service by specified method

5.15

Service is proved by an affidavit made by the person who served the document showing that the terms of the order have been carried out.

Service of claim form by contractually agreed method

5.16

1. This rule applies where a contract contains a term specifying how any proceedings under the contract should be served.
2. A claim form containing a claim in respect of a contract may be served by any method permitted by that contract.
3. If the claim form is served within the jurisdiction in accordance with the contract, it is to be treated as having been served on the defendant.
4. If the claim form is served out of the jurisdiction in accordance with the contract, it is not to be treated as having been served on the defendant unless service out of the jurisdiction is permitted under Part 7.

Service of claim form on agent of principal who is out of jurisdiction  

5.17

1. If the conditions specified in paragraph (2) are satisfied, the court may permit a claim form relating to a contract to be served on a defendant’s agent.
2. The court may not make an order under this rule unless it is satisfied that –
   1. at the time of the application –
      1. the agent’s authority had not been terminated; or
      2. the agent is still in business relations with the defendant
   2. the contract to which the claim relates was entered into within the jurisdiction with or through the defendant’s agent; and
   3. the defendant cannot be served within the jurisdiction.
3. An application may be made without notice but must be supported by evidence on affidavit.
4. An order under this rule must state the periods within which the defendant must file –
   1. an acknowledgment of service; and
   2. a defence.
5. When the court makes an order under this rule, the claimant must serve the agent with the –
   1. claim form;
   2. order; and
   3. statement of claim;

and at the same time send to the defendant at the defendant’s address out of the jurisdiction a copy of each document.

Service of claim form for possession of vacant land

5.18

1. (1) Paragraphs (2) to (3) deal with the service of a claim form for  possession of land where –
   1. There is no person in occupation of the land; and
   2. service cannot otherwise be effected on the defendant.
2. The court may direct that a claim form and statement of claim be served by affixing a copy of the claim form to some conspicuous part of the land and by publishing a notice of the claim at least once in one or more newspapers of general circulation in the Member State or Territory in which the land is situated.
3. An application for an order under this rule –
   1. may be made without notice; but
   2. must be supported by evidence on affidavit that there is no –
      1. other method of serving the defendant; and
      2. person in occupation of the land.

Deemed date of service

5.19

1. A claim form that has been served within the jurisdiction by pre-paid post is deemed to be served, unless the contrary is shown, on the day shown in the table in rule 6.6.
2. If a claim is sent to the legal practitioner of a party who certifies that he or she accepts service on behalf of the defendant, the claim is deemed to have been served on the date on which the legal practitioner certifies that he or she accepts service.
3. If an acknowledgment of service is filed, whether or not the claim form has been duly served, the claimant may treat –
   1. the date of filing the acknowledgment of service; or
   2. (if earlier) the date shown on the acknowledgment of service for receipt of the claim form; as the date of service.
4. A claimant may file evidence on affidavit to prove that service was in fact effected on a date earlier than the date on which it is deemed to be effected.