The COVID-19 outbreak has introduced several new challenges in terms of getting started with proceedings, and one of the biggest challenges being faced today is ensuring safety during personal service under lockdown orders within the jurisdiction.
At the beginning of the UK lockdown in March 2020, Mark Groves of the National Centre for Domestic Violence boldly announced that the NCDV would be shifting entirely from a personal service first approach to using this method merely as a last resort in cases where alternative service could not be provided.
Alternative service utilises some of the more unconventional methods, including voicemail, social media, text message, and communications apps. It is most often used in situations where effecting personal service would not be practical and can prove to be a beneficial method in moving proceedings along in situations where problems have been encountered. However, is alternative service good enough when it comes to non-molestation orders, occupation orders, and other such orders that carry criminal or penal sanctions for breach? Alternative service does have its own limitations.
For example, staff shortages across the country’s delivery networks as a result of illness and shielding have reduced the frequency of first class post, while sending orders to a last known address may fail to reach the recipient if they have a need to isolate elsewhere. Similarly, electronic options such as email, social media message, or text message rely on the relevant device having been taken to the location of isolation.
Personal Service During the Pandemic
Despite the challenges, at National Legal Service we believe that effecting personal service remains feasible in many cases under the current situation. Should social distancing regulations prevent documents from being handed directly to the prospective defendant, informing the relevant person of the order can be sufficient.
The FJC Protocol on Process-Servers states that non-molestation orders do not have to be handed directly to the prospective defendant as long as reasonable effort has been made to inform; an act that can safely be carried out during social distancing.
While some courts are following the NCDV’s lead and shifting expectations, others are retaining the view that personal service should be the first approach, with the COVID-19 outbreak not being used as an excuse to automatically shift to alternative service.
The subject is considered further by Rachel Cooper and Michael Horton from Coram Chambers here.
Non-Molestation Orders in 2020
At National Legal Service, we believe that even though personal service is not mandatory for non-molestation and occupation orders, personal service should always be attempted and should be the primary expectation during the global pandemic.
The ability to demonstrate that a potential respondent has been informed through personal service ensures the order is able to be enforced. Due to delivery delays and isolation, it can be difficult at this time to prove the respondent has been informed. Therefore, personal service must be used as a first approach, with alternative service used in cases where circumstances do not allow for the effect of personal service.
We believe this also may assist if breaches of non molestation orders need to be reported to the police as it can then be clearly evidenced that the respondent is aware of the terms of the injunction; enabling the police to progress an allegation of breach (which can be punishable by a fine, imprisonment or both – depending on circumstances).