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This column discusses the circumstances in which court documents may be served on a party through public notice, such as by posting a notice in a newspaper. Starting with considering the purpose of rules regarding the service of court documents, it then discusses the position in common law jurisdictions with reference to England and Wales, and the Hong Kong Special Administrative Region. Finally, it examines the position in mainland China.

Service

The rules governing the service of court documents are important as they determine when a person, such as a defendant in a civil dispute, is given notice of a legal proceeding, and is compelled to appear in court and submit to the jurisdiction of a court. If the person fails to appear and defend the case, a court may issue a default judgment against the person.

Personal service, where court documents are served personally, is the fairest means of initiating legal proceedings as it ensures that details of the dispute ¨C and the case against the defendant ¨C are brought to the defendant¡¯s attention. This is the most certain way of complying with the principle that a person should be given notice of proceedings that have been instituted against them so that they can respond and defend their interests. This principle is based on the concept of due process, a concept that has been recognised for hundreds of years (for a discussion about due process in the context of the Magna Carta, see China Business Law Journal, volume 6, issue 5: Magna Carta).

Most jurisdictions recognise that court documents may be served by other means that are likely to bring the proceedings to the attention of the defendant. These include service by post, service by leaving a copy of the court documents at a defendant¡¯s property, and service by sending a copy of the proceedings to the defendant by email or text.

In such circumstances, however, the law needs to achieve a balance between two potentially conflicting needs: (1) the need to support the right of a plaintiff to bring a claim, including where the defendant¡¯s whereabouts are unknown or the defendant intentionally evades service; and (2) the need to protect the right of a defendant to know about the claim and the case against them. This balance is usually achieved by the application of strict requirements in respect of such other means of service and, in some cases, the requirement to obtain court approval.

Common law jurisdictions

In common law jurisdictions, the means by which a court exercises jurisdiction over a person is referred to as ¡°process¡±. The phrase ¡°service of process¡± therefore refers to the service of documents necessary to commence legal proceedings against a person, such as a defendant. The term ¡°substituted service¡± refers to the service of court documents otherwise than by personal service.

In England and Wales, rule 6.15 of the Civil Procedure Rules provides as follows:

1. Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this part, the court may make an order permitting service by an alternative method or at an alternative place.
2. On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
3. An application for an order under this rule ¨C
   1. must be supported by evidence; and
   2. may be made without notice.
4. An order under this rule must specify ¨C
   1. the method or place of service;
   2. the date on which the claim form is deemed served; and
   3. the period for ¨C
      1. filing an acknowledgment of service;
      2. filing an admission; or
      3. filing a defence.

In Hong Kong, order 65, rule 4 of the Rules of the High Court (Cap 4A) provides as follows:

4. Substituted service (O. 65, r4)

(1) If, in the case of any document which by virtue of any provision of these rules is required to be served personally or in the case of a document to which order 10, rule 1, applies, it appears to the court that it is impracticable for any reason to serve that document in the manner prescribed on that person, the court may make an order for substituted service of that document.

(2) An application for an order for substituted service may be made by an affidavit stating the facts on which the application is founded.

(3) Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the court may direct to bring the document to the notice of the person to be served.

One important difference between the above-mentioned rules is that, in England and Wales, the test for substituted service is ¡°good reason¡±, whereas in Hong Kong the test is ¡°impracticable for any reason¡±. The test in Hong Kong reflects the old rules of civil procedure in England and Wales. The test in England and Wales was introduced in the 1990s as part of legal reforms that were known as the Woolf Reforms. The reforms were introduced to permit greater equality, efficiency and economy in civil litigation.

The ¡°good reason¡± test is considered to involve a lower standard than the ¡°impracticable for any reason¡± test in Hong Kong as the latter generally requires proof of unsuccessful attempts to effect service before a court will be satisfied that it is impracticable to serve court documents personally. As a result, some people have called for Hong Kong to replace its existing test with the ¡°good reason¡± test.

In both jurisdictions, courts have permitted court documents to be served by posting a notice in a newspaper. For example, in England and Wales, this has been permitted in divorce cases. In Hong Kong, the case of Chan Yeuk Mui v Ng Shu Chi (1999) considered the validity of service on a defendant that was effected by advertising a notice of the proceedings in a widely circulated Chinese newspaper, the Sing Tao Daily.

Mainland China

Under PRC law it is the court, rather than the plaintiff, that serves court documents. However, assistance must be provided by the plaintiff where necessary. Article 95 of the Civil Procedure Law provides for service by public notice as follows:

Article 95

Where the whereabouts of the person on whom a litigation document is to be served are unknown, or if a litigation document cannot be served by any other means set out in this section, the document shall be served by publication. The document shall be deemed to have been served 30 days after the publication. The reasons for and the course of service of process by public announcement shall be recorded in the case file.

It is generally understood that a court can only serve court documents by publication where it has exhausted other methods for service of court documents. If a defendant¡¯s right to due process is damaged due to the court¡¯s failure to exhaust other methods for service of court documents, the defendant may apply for a retrial on this ground.

In a reply to a proposal from the National People¡¯s Congress on ¡°revising or interpreting the provisions on the service of first instance cases by public notice in the people¡¯s courts¡± , the Supreme People¡¯s Court stated that, ¡°it is only when the whereabouts of the person to be served are unknown or service cannot be made by exhausting the other forms of services as provided in the Civil Procedure Law that service by public notice can be effected¡±.

The standard under PRC law ¨C namely, that the other forms of service ¡°cannot be made¡± ¨C is higher than the standards in the common law jurisdictions as outlined above. This reflects the concern in mainland China that courts will exercise their discretion inappropriately in serving court documents by public notice.

In 2021, a representative of the Intellectual Property Court of the Supreme People¡¯s Court wrote an article explaining the public notice system and providing statistics on its use:

The value of the service by public notice system is to ensure that the plaintiff¡¯s claim will not lack judicial relief as a result of the inability to serve the defendant. This system is a balanced choice made by the legislative and judicial organs between judicial fairness and judicial efficiency for the sake of procedural justice and procedural legality. We should be aware that the possibility that service by public notice will achieve actual service is extremely low, and it should be used cautiously in practice in accordance with the law to avoid damaging the litigation rights of the parties. According to statistics from some local courts, the number of cases ordered to be retried due to violation of the service by public notice procedure is relatively large, and the proportion is relatively high. According to statistics from the Shanghai No. 1 Intermediate People¡¯s Court from January 2013 to June 2017, among the 1,536 cases where parties were dissatisfied with civil and commercial judgments in the jurisdiction and applied for retrial, a retrial was ordered in 152 cases, with a retrial rate of 9.9%. Among them, 46 cases were retried due to procedural violations. Among these 46 cases, 31 cases were due to violations of the service by public notice procedure, accounting for 67.39% of the total number of cases ordered for retrial as a result of procedural violations, of which 28 cases involved the unlawful initiation of the service by public notice procedure.

In conclusion, serving court documents by public notice is possible in both common law jurisdictions and in mainland China. However, it is generally considered to be a measure of last resort and the circumstances in which it is used must adhere to the requirements of due process.