Service of Process and Interlocutory Applications
Foundations
A suit is not properly instituted against a defendant until service of process is effected. Defective service can vitiate proceedings; valid service sets the clock running for appearance and defence.
Concepts to master
- Modes of service: personal, substituted (affixation, publication), by post, electronic, and service on agents or authorized representatives.
- Proof of service: affidavit of service, acknowledgment, or postal record; courts may presume service after due procedure.
- Ex parte and interim orders: ex parte injunctions, attachment before judgment, appointment of receivers, and commissions.
- Interlocutory applications must be supported by affidavit, disclose urgency, and satisfy the legal test (e.g., prima facie case, irreparable injury, balance of convenience for injunctions).
- Notice and hearing: interlocutory orders affecting rights generally require notice, save in cases of genuine urgency where ex parte relief is justified and promptly reviewed.
Traps in questions
- Treating substituted service as available without first attempting ordinary service.
- Forgetting that an ex parte injunction must be of limited duration and subject to variation or discharge.
- Ignoring the requirement of an affidavit in support of interlocutory applications.
- Assuming service by post is complete without proof of delivery or proper address.
Rule of thumb
Attempt ordinary service first; document every step; seek substituted service only on affidavit showing inability. For interlocutory relief, apply the three-part injunction test and disclose all material facts.
Worked example
A claimant obtains an ex parte injunction without disclosing a prior contract with the defendant. The defendant applies for discharge. Non-disclosure of material facts is itself a ground for discharge, independent of the merits, because interlocutory relief demands the utmost good faith.