The Covid-19 outbreak has prompted many aspects of the Scottish courts system to move online. The Inner House of the Court of Session has recently begun convening as a virtual court. Meanwhile, the Coronavirus (Scotland) Act 2020 has, amongst other things, permitted service and intimation of court documents to be carried out electronically.
Until now, a party raising court proceedings in Scotland has generally relied on the post or on personal service (by messengers at arms/sheriff officers) to serve court writs. The change in the law means that documents initiating court proceedings can now be served by any electronic means – provided the party on whom the writ is served has agreed to electronic service by that means in advance.
This blog will highlight some of the issues which should be considered before agreeing to accept the use of electronic service.
Requests to accept service by electronic means
It's important to emphasise that there's no obligation to agree to electronic service and any agreement can be restricted so that it applies only to a particular court action or document. The agreement can also restrict the way in which electronic service can be carried out – to a specific email address for example.
The agreement doesn't have to be specifically addressed to the party who is looking to serve the writ. Some recipients may choose to make it clear to the world at large that they will always accept electronic service of court writs. That could be done by a notice on a website for example.
A sender may also be entitled to rely on the past behaviour of a recipient. If a recipient has previously been willing to receive court documents electronically from a sender, then the sender may be entitled to assume that they can serve further court documents on the recipient by the same method (provided the recipient has not indicated otherwise in the meantime).
Agreeing to receiving court documents electronically
Before agreeing to receive electronic service of courts documents – whether generally or for a specific case – we suggest that you should consult your solicitor.
It's important to put procedures in place to monitor incoming court documents and ensure that they are swiftly passed to the right person to deal with them. It would make sense to set up a specific email inbox and require the sender to send documents to that address to avoid court documents becoming lost among routine email traffic.
Alternatively, problems might be avoided by the recipient simply instructing their own solicitor to either accept service of the court writ on their behalf (something that solicitors have always been able to do) or agree that the sender can serve the writ electronically by sending them to the solicitor rather than the recipient.
What if a court writ is received without the recipient having agreed to electronic service?
It may be the case that a sender will look to infer consent from previous conduct – either in relation to the new action or from previous dealings in connection with other court actions
Reliance on inference is risky since the absence of a willingness to accept service by the electronic method used is likely to result in service being invalid. The Act is unclear on the extent to which parties can draw inferences from prior conduct to satisfy the need to obtain agreement.
Any potential problem with electronic service is likely to be cured if a recipient tells the court that they are defending the court proceedings. Whether service is carried out electronically or by traditional methods it is essential to contact your solicitor as early as possible.
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