Valid Service of Notices & Documents
Our last article gave a brief overview of some of the notices commonly served under the Party Wall etc. Act 1996 and the information that they should contain. But what does ‘service’ of documents mean, what form can it take and why is it important?
'Service’ is not a term that is limited to the Party Wall etc. Act 1996 (the Act), but is also used in the wider legal arena. In a nutshell, it means the provision of documents to other parties by set dates. This is important because the Act contains many procedures that require Owners to act or respond within a set timescale. Therefore, having a provable means of delivery/receipt of documents and a set date of commencement of these timescales is vital to avoid disputes later.
Section 15 of the Act outlines several ways that any notice or document ‘may’ be served:
by delivery in person;
by sending it by post, to the person's usual or last-known residence, or place of business in the UK;
or, in the case of a corporate body, by delivering it to the secretary or clerk of the corporate body, at its registered or principal office, or sending it by post to the secretary or clerk of that body corporate at that office.
In practice, serving by first class post is the favoured by most surveyors initially. Not only does this avoid potentially long trips to deliver documents in person, but proof of postage is easily obtained from the Post Office in the form of a 'Certificate of Posting'.
It may seem logical to send the document through the Royal Mail’s ‘Signed For’ service. However, a document that has to be signed for, to confirm receipt, could be rejected by the recipient and therefore would not be classed as effective service. Therefore, simply sending the document First Class and obtaining a Certificate of Posting is often viewed as the best way.
What about serving in person? This may be the simplest for two neighbours, especially if they get along well. However, if that isn’t the case, problems could arise if the recipient refuses the document or later claims service was not made. Without some sort of photographic proof, this type of service could be quite tricky and one of the other options could be more appropriate.
It should be noted that just posting documents through the letterbox is not classed as effective service. Section 15 (2) does describe an alternative means of service, by fixing the document to a conspicuous part of the person's premises. However, this should not be viewed as an ideal means of service and should only be used if other options are unavailable for some reason.
Fortunately, in 2016 the Act was amended to allow service by means of electronic communication, usually via email. However, there are some caveats noted in Section 15 (1A);
the recipient has stated a willingness to receive the notice or document by means of an electronic communication,
the statement has not been withdrawn, and,
the notice or documents was transmitted to an electronic address specified by the recipient.
Importantly, as stated above, permission to serve documents electronically must be gained by the other party. In practice, a simple email or text message asking if they are happy to receive documents to their specified email address is sufficient. This is a far quicker means of service, eliminating the delay that occurs when using the postage system.
It should be noted that the notice & appeal periods described within the Act are from the date of service, not the date of postage. The Civil Procedure Rules (CPR Part 6 Service of Documents r.6.26) stipulates the amount of time that should be allowed to calculate the deemed service date;
In the case of First Class postage, the deemed date of service is ‘the second day after it was posted….provided that day is a business day'. Therefore, a notice posted first class on a Monday would need a service date set as Wednesday.
For electronic service (email), provided the email is sent before 4.30pm on a business day, the deemed service is that day. If it is after 4.30pm, it is deemed to be served the next business day. The same time periods apply for personal service also.
The above procedure may seem longwinded and confusing, but as the Act is only invoked by service of a written notice, the whole process hinges on this being carried out correctly. If service is not carried out correctly it could lead to notices & other documents being classed as invalid, which can cause considerable issues and delays.
If you need any advice on a party wall matter, including the service of notices, please feel free to contact us on 020 8306 0680 or via our email or contact page.