Sending formal documents in court and tribunal proceedings

What is Service of Documents?

During the litigation process each side has to deliver certain formal documents to the other side. This is traditionally known as service of documents. Serve might seem an odd word to use but it has the same root as the word used in the game of tennis for the act of one player starting off the ball by hitting it over to the other player's side. The rules of the particular court or tribunal set out what you have to do for service of a document to be valid and are quite precise. For example the rules might provide that you can serve a document by sending it by First Class post but not Second Class post. Usually the rules allow you to chose from a number of different methods of service - for example the rules might allow you to use the postal service and might also allow you to hand-deliver. Unless the rules say otherwise you only need to serve a document once on a party using one valid method of service, but sometimes, if there is doubt as to whether a particular method would be valid under the rules in the particular circumstances of the case, people chose to serve a document on a party twice using two different methods, just in case one of the methods turns out to be invalid. Generally the rules allow you to do this - i.e. it does not matter if (within reason) some of your attempts at service are invalid as long as at least one attempt is valid (and in time) under the rules.

You must comply with the rules

Whichever permitted method of service you decide to use, you have to comply with the rules for that method of service exactly. If the rule says that First Class post has to be used, don't use Second Class. If the rule says that the documents must be posted to a party's usual residence, don't send them to the party's employer's offices. 

If you use Second Class post (for example) when only First Class post is allowed by the rules, service will be invalid. The fact that the documents arrived on time and were read by the other party makes no difference - service is still invalid. The rules of some courts and tribunals allow a party to ask the court/tribunal to retrospectively validate irregular service but even where this power exists, and even where there is no doubt at all that the documents reached the other party on time, the courts/tribunals are extremely reluctant indeed to exercise any power to retrospectively validate in case it encourages others to be careless of the rules.

Service is unilateral     

Generally the rules of a court or tribunal will say that if you follow the precise requirements laid down for a particular method of service, then service is valid and you do not need to check with the other side that they have opened and read the document you have served. If this surprises you, bear in mind that if the other party had to positively confirm receipt in order for service to be valid then anyone wanting to avoid service could simply fail to respond. So the rules about service specify what you, the person serving, have to do, and providing you do what the rules specify then generally service is valid even if the other party, for some reason, does not immediately see the document.

This means that if the other party chooses not to participate in the litigation process, you would normally win by default.

Setting aside a default judgment

It might seem harsh that a party who is unaware that a document has been served on them (e.g. because they are away on a long holiday) could lose by default, and the rules of most courts and tribunals seek to mitigate this harshness by providing a procedure by which someone who has lost "by default" can ask the court or tribunal to set aside the default judgment so that they can participate in the litigation process. But if the rules made it too easy to get a judgment set aside that might actually encourage people not to open their post promptly, not to keep their service address registered at the Land Registry (for property they own) up to date, etc. So normally the rules of courts and tribunals require someone applying to have a judgment set aside to show something more than merely that they did not receive/read the document which was served. Depending on the rules of the particular court or tribunal the judge when considering an application to set aside will probably want to know why the document was not read promptly - was it because the applicant moved away without leaving a forwarding address, did the applicant fail to keep their Land Registry address up to date, or was the problem something completely outside the applicant's control such as a document lost in the post?  Also relevant may be whether the applicant applied to set aside default judgment as soon as they knew about it, or whether there was a delay, and, if a delay, what the reason for the delay was.

In addition often the rules of the court or tribunal will require the applicant to establish that they have a chance of winning in the end, if judgment in default is set aside, and the matter goes to trial. The rationale for this is that there is no point in setting aside a default judgment if the applicant is bound to lose in the end anyway. Obviously deciding in advance whether someone has a chance of winning at trial is not an exact science and this is one reason which it can be particularly difficult to predict whether an application to set aside will succeed.

Generally legal rules are designed to provide a degree of certainty but when it comes to applications to set aside, it is often considered that a degree of uncertainty as to whether an application might succeed has a positive effect on human behaviour. Because a party cannot rely on getting default judgment set aside, they have an incentive to open their post promptly, to not move without leaving a forwarding address, and to keep their Land Registry address (registered against property they own but do not live at) up to date.

Equally a party serving documents has an incentive to minimise the risk that, if they obtain judgment in default, it will be at risk of being set aside. For example, suppose a party has been corresponding with their opponent by email about a dispute. They then serve formal documents (to e.g. start the court/tribunal process) by post in accordance with the rules of the court/tribunal. The other side is in fact away and they send an email continuing discussions about the dispute which does not, of course, mention the formal documents served which they have not yet seen. Although the first party may not be obliged by the rules to reply by email mentioning that documents have been formally served, the first party has an incentive to do so because if the first party replies by email pointing out that documents have been served (and emails a PDF copy of the documents served if requested to do so) that reduces the likelihood of any subsequent application to set aside a default judgment succeeding - and obviously the delay and cost of getting a default judgment only for it to be set aside is something the first party wishes to avoid.   

The rules specify the date of service

It is important for everyone to know on exactly what date a document is deemed served in order to know whether it was served by any relevant deadline and also because the person served with the document may have a fixed number of days, counting from the date of service, to take some action. Because of the importance of certainty as to the date of service, the rules of some courts and tribunals will specify when service is deemed to have taken place - for example a rule allowing service by First Class post might specify that the date of service is two business days after posting. This might mean that the deemed date of service is a day before, or a day after, the date when the document actually arrives in the post but that is normally considered a price worth paying to have a rule which provides certainty about the deemed date of service.

Service of documents on the court/tribunal office

The rules of courts and tribunals about sending/delivering documents to the court/tribunal office itself are very often different from the rules which apply to the service of documents by one party on another, and often the word filing, rather than service, is used.

One obvious reason why the rules are often different is that the court/tribunal office itself will be opening and date-stamping documents received by post/hand delivery and so knows for certain that they have arrived and the time window in which they arrived - there is thus normally no need for rules to specify what type of post - First Class or Second Class - has to be used (either it arrives and is filed or it doesn't and is not).

Barristers are not permitted to serve documents

You yourself (if you have not engaged a solicitor) have to serve documents. A barrister can draft documents for you to serve but you have to do the serving. One reason why barristers are not allowed to serve documents is that if there is a dispute about whether or when a document was served (when it was posted, or when it was delivered, for example) the person who posted/delivered may need to give evidence in court/tribunal, and barristers are not permitted to themselves give evidence (as that would compromise their role as advocates).

Sending correspondence to the other side

As well as sending formal documents to the other side, you may also send ordinary correspondence. In particular, before court proceedings are formally commenced, the courts normally expect the party considering starting proceedings to set out, in a letter before action, briefly what they are claiming and why and give the other side an opportunity to respond. Usually such correspondence is not part of the formal proceedings - and so is not covered by the rules about service. However it is good practice to send/deliver letters before action in accordance with the rules for service for the particular court or tribunal even though they do not technically apply. The court expects letters before action to be sent in such a way that the defendant is likely to see them promptly and following the rules for service (even though they may not technically apply) for letters before action is a good way of demonstrating this. In addition you can use the delivery of the letter before action as an opportunity to verify that the address is indeed a valid address which can be used in due course for service of formal documents. 

For example, if the rules of the particular tribunal allow service at the defendant's usual residence, you can take the letter before action, in an envelope addressed to the defendant, to the address you believe to be the defendant's home address and ring the door bell. If the defendant answers the door you can hand them the letter and if the address looks like a residence (rather than, say, an office) you may feel that you can be fairly sure that that is the defendant’s usual residence. If someone else answers the door you can ask them to confirm that the defendant lives there and, if they do but are not there at the time, you can still hand over the letter for them. If the person who answers the door says that the defendant used to live there you could ask if they know the defendant’s current address and then call at that address and repeat the procedure.


This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.

This page was lasted updated in August 2019 Disclaimer