Normal service will be resumed… or not - Andrew Stevenson

Andrew Stevenson is Secretary, Scottish Law Agents SocietyAndrew Stevenson is Secretary, Scottish Law Agents Society
Andrew Stevenson is Secretary, Scottish Law Agents Society
The service of court papers is not the most reliable of arts

One of my duties as a temporary Christmas postman in the 1980s was to hand over recorded delivery court citations to defenders, witnesses and the like. This was never a pleasant task, sure to sour any festive spirit. Official-looking letters requiring a signature are unlikely to be from well-wishers. One always hoped the recipient would not shoot the messenger.

When postal delivery is refused (or likely to be), service of court documents in Scotland is entrusted to sheriff officers and messengers at arms. Unlike postal workers, they issue reports of how they have fared. However, these rarely give a detailed description of those upon whom they effect service. Perhaps they ought to do more. Indeed, maybe they ought to be issued with a photograph of their quarry. Since their targets are frequently reluctant to take possession of papers, these deliveries are often left with someone other than the party concerned, such as another member of the household.

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This has its hazards if that recipient lacks good faith. I once had a case in which insolvency petition papers were left in the hands of a staff member at a hotel in Stirlingshire. Unbeknown to the sheriff officers, he was a seething malcontent. Whether due to malice, mischief or indifference, these citation papers were stuffed into the drawer of a bureau. The disgruntled employee left his post a couple of days later for other reasons but still under a cloud, leaving the crumpled papers behind.

The paperwork was discovered weeks later only after the hotel company had been made bankrupt by the sheriff court in absentia. A recall procedure explored the awkward issue of service. The officers’ report simply referred to having left the papers with an individual in the reception area. There was no description whatsoever and the key suspect denied responsibility, seeking to pin the blame on others. Similar antics occurred in a divorce case of mine where the officers attended the defender’s workplace and he denied being the person named on the writ, despite helpful colleagues having directed the officers to him, sitting at his desk.

By contrast, this year I had cause to employ the services of US process servers. Their task was to deliver Scottish court documents in terms of the Hague Convention to my client’s husband, now living in America.

The case was remarkable before service was even attempted; I was asked by the process servers whether the client’s husband was Black. I confess this was not something I had broached at my meeting with her. This is not a question that one would normally ask a client.

The report of service made unusually detailed reading. It stated that the individual who accepted service (the defender, they obviously hoped) “appeared to be a bald white male, 45 to 55 years of age 5’8” to 6’ tall and weighing 200-240 lbs with an accent. Balding with brown hair”. The accent is unstated but given that the man hailed from the West of Scotland, one can forgive the American servers for not being more specific. Certainly, I have never encountered a sheriff officer report which refers to the individual’s race, weight, manner of speaking or lack of hair. For one thing, we in Scotland get nervous and fidgety about even mentioning personal or protected characteristics; no one wants to risk being deemed a hate criminal in so doing.