The High Court has deemed documents already served on a solicitor to be good service on Ann Douglas, the substituted defendant in a circuit appeal brought by Kenneth Price. The order is subject to the solicitor’s right to apply to have it set aside.
In a judgment delivered on 12 May 2023, Mr Justice Garrett Simons considered Price’s ex parte application to have service deemed good or, alternatively, to allow substituted service. Douglas had been substituted for the original defendant, who had died, by a High Court order dated 24 March 2022.
Price’s solicitor said personal service on Douglas had not been possible. Inquiries indicated she was not living at the address on the grant of letters of administration; Price had no date of birth for her; and she did not appear to have a Facebook or LinkedIn presence.
The judgment records that Lisa McKenna, a solicitor who was not on record in the appeal, had previously been involved in settlement discussions and had acknowledged receipt of a full set of papers. McKenna’s firm had said it was not involved in the appeal or acting for Douglas in it. The judgment also records that the solicitor had indicated the appeal had no merit and had sometimes instructed counsel to maintain a watching brief on applications.
Simons said substituted service on a solicitor who is not formally on record may be justified where the court is satisfied the person is the party’s client and the solicitor can contact that client. He stressed that an order for service does not make the solicitor the solicitor on record or require her to act in the proceedings; it requires a reasonable effort to provide the papers to the client.
McKenna may seek to have the order set aside, including on the basis that she is no longer in contact with Douglas or objects in principle to service on a solicitor not on record. Any motion is returnable before Simons at 10:30am on 12 June 2023. The order and specified accompanying documents are to be sent to McKenna’s business address by hand or registered post. The costs of the application were reserved.
The appeal itself was not decided. The judgment said that if no motion were brought, the court would assume Douglas had received the papers and would fix a hearing date. It also stated an intention that the appeal be heard before the end of the legal term on 31 July 2023.