One of the key pillars of any democratic society is that all persons have access to the justice system. However, one of the most often overlooked yet critical cogs in the judicial process is service i.e. being able to properly notify the respondent of the commencement of judicial proceedings.

Effective service seeks to ensure that judicial documents are brought to the attention of the party being served through adequate and practical modes of service that guarantee reasonable assurances that the correct parties are notified, thus preserving the integrity of the judicial process.

However, it is often the case that the judicial process is grounded before it can even take off due to the inability to serve the respondent with notice of judicial proceedings. There is, therefore, a pressing need to ensure that service can be effected properly and without delays.

The current state of play

Under Maltese law, service in Malta is effected either by registered court mail or by the court bailiffs. These modes of service function to a certain extent, however, unfortunately, the system is also fraught with delays that are inevitable due to the reliance on multiple organisational factors, especially when recipients are difficult to locate or notify.

Currently, where service could not be completed via either of the traditional modes, the court may, upon a request filed by the party seeking to serve the document, direct service of the judicial act through affixation and publication in the Government Gazette, as well as in local newspapers which results in further delays.

This creates a butterfly effect, often leaving proceedings at a standstill for several months until the notification stage is completed.

Possible alternative?

These delays render the judicial process extremely cumbersome on one level and also make access to effective judicial remedies difficult.

Additionally, given the global digital shift, there is an increasing need to modernise the court system; to adapt and implement more efficient e-communication and notification procedures to expedite the service process.

One such way could be by using e-mail to notify parties of judicial acts given that this is both cost-  and time-effective.

The advantages are multifaceted given that the means of service would enhance transparency while, at the same time, allowing court officials to focus on other important tasks.

Practitioners are all too familiar with court officials having to expend significant amounts of time processing physical documents for postal service and waiting weeks for the return of a ‘pink-card’ or postal slip. This problem is exacerbated where addresses indicated by parties in court papers and at the MBR are not genuine bona fide functioning offices.

The [current] system is fraught with delays that are inevitable due to the reliance on multiple organisational factors

Service by e-mail has the further advantage of providing a quick and clear confirmation of service/non-service through a delivery/read receipt. The presumption which applies to the traditional modes of service is that the recipient would have seen the documents once a confirmation of delivery or certificate of service is issued by the court. Invariably, the presumption typically applied to service under the existing rules is easily applicable to e-modes of service¹.

Assuming electronic service is taken up, some practicalities need to be considered e.g. whether the parties simply send judicial documents directly to a party via e-mail. When would electronic service be considered valid and when is it not permitted?

In proposing such a solution, it is also important to ensure that the system retains integrity. Thus, before implementing e-service, there would need to be a comprehensive review of current service rules.

Subsequently, attention would need to be on incorporating specific procedures for electronic notification of certain judicial documents. Electronic service would need to be defined and eventually included as one of the main modes of service. The definition and interpretation of electronic service should be broad enough to encompass various forms of electronic communication beyond just e-mail, including social media platforms.

In recent UK case law, courts have recognised the validity of service by electronic means, including social media platforms, especially after unsuccessful attempts to serve the documents by post and by court bailiff, thereby adapting traditional legal procedures to the digital age and rendering the process of service (i) more efficient and (ii) increasing legal certainty.

For this to work seamlessly though, there is the need to enhance the current online platform – to make it more accessible for legal professionals to process and manage filings, and have a system properly set up to monitor formal electronic communications. The online system is functional vis-à-vis case management but not fully operational to receive and process filings.

Where service could not be completed via either of the traditional modes, the court may, upon a request filed by the party seeking to serve the document, direct service of the judicial act via electronic means as opposed to affixation and publication.

Procedural matters

To the extent this means of service is taken up, then the actual mechanics of how this is implemented needs to be stress-tested. In fact, before proceeding with service using electronic methods, there must be an order from the court authorising e-service.

Alternatively, the parties or their legal representatives may choose to formally authorise e-service of pleadings and provide valid e-mail addresses or any other electronic identification.

Therefore, the party seeking to serve documents must first establish whether the recipient has agreed to receive service via electronic means or must obtain an order from the court authorising such service. The door to such a means of service has already been left ajar by one of the recent amendments to the Companies Act introducing the requirement that newly incorporated companies must indicate a valid e-mail address of the company in their memorandum and articles.

The e-mail address is intended for electronic correspondence between the registrar and the company and other notifications, and could be extended to include service of judicial documents via electronic means.

This would expedite the service process, particularly in situations where companies have not updated their registered addresses, or where companies with foreign representatives no longer have access to corporate service providers or have lost contact with those providers.  This initiative promotes the use of digital communication.

Additionally, with the rise in litigation involving international parties, electronic service enhances accessibility and ensures that all parties are properly notified of proceedings, regardless of their location.

Though we have not fully embraced the digital shift in legal communication, implementing electronic service is the logical next step to enhance efficiency within the legal system and improve court operations and processes across the board.

¹ Article 187(1) of the Code of Organisation and Civil Procedure.

Lindsey Galea is legal procurator at Ganado Advocates.