There’s nothing quite like the feeling you get in the pit of your stomach when you realise that a document was served on your company, ignored, and consequently you’ve unnecessarily lost a right or gained a fight.
But it happens regularly.
In fact, with the complexity of running a construction job and the rafts of paperwork that go into good contract administration, we are often faced with a situation where the defining feature of a dispute comes down to whether or not a document was served, and if so when.
Given the consequences of system failure here can include the inability to claim liquidated damages, being presumed insolvent, and having a judgment entered against you – it’s an area where a tight and functional system is extremely important.
With that in mind, the question is this: what is your company’s system for receiving, identifying and dealing with documents that are served on it?
Don’t have one? In this article we’ll offer a few practical tips to help you put one in place.
What is “Service”?
While the word might seem like it’s a bit mysterious, being “served” isn’t that distinguishable from being “given”.
The main difference is that being “served” tends to have a more formal source, and a more defined set of consequences. For example, being served might:
- Trigger a claim under a contract that you need to respond to;
- Require you to respond in accordance with Court rules or legislation;
- Begin a series of events that need to be completed within particular timeframes.
So if we treat service as just being given something, then our job is to develop a system which allows us to deal with documents appropriately as they arrive.
Below we set out the elements of an effective internal system to deal with service of documents, and minimise the chance of anything slipping through the cracks.
1 – Where Might Service Occur?
Generally speaking documents are most likely to be served on you at a two main locations:
- Addresses for notices in your Contracts – over time this can get complicated, but ensure that you know which addresses (including emails and fax numbers!) you have noted in your contracts. Most contracts allow you to update or change your address for service of notices, so if needed send out a form letter ensuring that everything is up to date and things go where you want them to be going.
- The Registered Office of your company – even if it’s your accountant or interstate somewhere, your registered office is still normally going to be a valid place for service of documents.
While these are the most common, these are not exclusive. Service can take place in many ways, and ideally you have a company-wide system and policy for dealing with document receipt and processing no matter how it is received.
That is the safest and most prudent way to avoid getting caught out unawares.
2 – Who’s the Gatekeeper and Are They Trained?
If, say, one place for the service of notices is the email address “admin at yourbuildingcompany.com” who checks that email address? Who checks it when the first person is home sick or on annual leave?
Does that person know what kinds of documents to look for and what to do with each of them? For example, do they know how to identify and what to do with:
- Extension of time claims;
- Show cause notices;
- Liquidated damages notices;
- Payment claims and/or progress claims;
- Dispute letters;
- Adjudication documents;
- Other contractual notices?
In each case, ensure that the gatekeeper at each possible address for service knows how to identify a relevant document and what they are supposed to do with it. Most likely that will be to send it to the person (unless they ARE that person) whose responsibility it is to oversee or action the necessary response. That might be a claims manager, a contract administrator, a project leader or someone else entirely.
If the document arrives by delivery or post, the gatekeeper should also note the receipt date on the document to avoid any chance of confusion later.
This needs to happen quickly. Whether it’s your receptionist opening the mail or your accountant at your registered office, documents served on your company should be identified and passed to the right person within 1 business day of arrival. With contracts out there that require responses within tight deadlines, anything longer isn’t really acceptable.
Because of the sheer array of potential documents that can be received, it’s also worth having an “I’m not sure what this is” procedure of some sort… even if it’s as simple as asking someone else or just giving us a call and asking.
3 – Who’s In Charge of Dealing with It?
So the gatekeeper has done their job, received and identified the document and sent it to the right person.
Depending on the document, the next steps might include:
- Determining if a response is needed or, if not, whether any internal action is required;
- If needed, diarising the date for response in the calendar of ALL relevant people;
- Assessing the resources (including human resources, legal advice, other external consultants) required;
- Giving clear directions and instructions/requests to those whose input is needed for a response, including a deadline for their input to ensure that a response can be sent in time; and
- Inevitably, following up on the above or clarifying issues when finalising the response.
4 – Finalising The Response Itself
Responding to documents served on you might be as simple as noting the contents and filing the document away.
Or it might require the mobilisation of a large team to deal with complex issues.
It is worth asking these questions to ensure that the quality of any response is maintained:
- What governs the contents of the response? Is it the contract, a piece of legislation, something else entirely? Have you specifically checked that source to ensure that the response complies with its own requirements?
- Does the response communicate clearly what it needs to communicate?
- Where does the response need to be served and have arrangements been made for it to be properly served within the required time?
- Who, if anyone, needs to sign the response? Are they available?
Dealing with Service Done Right
If you can get these 4 steps fully integrated through all parts of your organisation, then you run the best chance of minimising risks when served with documents and ensuring a timely and effective response.
So take a few minutes, sit down with your team, and decide:
- Where are your primary service nodes;
- Who is the gatekeeper for those nodes and are they on top of their role when it comes to service;
- Is the internal process of responsibility for responding to served documents working effectively? Are response timeframes regularly met?
- Are the documents being served in response achieving their desired outcome and complying with the relevant rules and clauses?
If you can nail these four main elements, you’re well on your way.
Need help designing your system or training your team? Reach out and we’d be happy to help.