When Is Service Good Service? Common Difficulties in Effecting Proper Service of Originating Process Within The Jurisdiction

Abstract

The next critical step in the judicial process after issue of originating process is service of that process. In order to be valid, service must be carried out in accordance with the rules or in exceptional cases in accordance with an express agreement between the parties ('consensual service'). If service is not properly effected, the impact on the plaintiff may be significant. Any default judgment he has obtained will usually be classified as an 'irregular' judgment and the defendant will be entitled to have the judgment set aside by the court, without an inquiry into the merits of the defendant's defence. The costs of the application to set aside will be borne by the plaintiff. The issue of whether or not service has been properly effected is topical in Hong Kong, as reflected by the recent spate of cases on this subject. This article (a) examines the procedural rules regulating service of originating process upon an individual within the jurisdiction, and (b) identifies some of the more common difficulties that have arisen in effecting proper service in light of the relevant case law. The article also considers whether the Hong Kong courts have adopted a consistent approach in applying the procedural rules.