In civil litigation, the general rule is simple: court documents must be personally served on the defendant. This ensures that the defendant is properly notified of the legal action and given an opportunity to respond. However, in practice, this is not always possible. Defendants may be untraceable, deliberately evasive, or simply absent.
This is where substituted service comes into play.
What Is Substituted Service?
Under Order 62 Rule 5 of the Rules of Court 2013, the Malaysian courts are empowered to allow service of court documents by alternative means where personal service is not practicable.
Substituted service is essentially a legal workaround. Instead of serving documents directly on the defendant, the court permits the plaintiff to use other methods that are reasonably likely to bring the proceedings to the defendant’s attention.
Contrary to common belief, substituted service is not limited to newspaper advertisements. While newspaper publication is one method, the court has broad discretion to approve various alternative modes of service.
When Can Substituted Service Be Used?
A plaintiff may apply for substituted service when:
- The defendant is believed to be within Malaysia, but their exact whereabouts are unknown; or
- The defendant cannot be located despite reasonable efforts; or
- The defendant is actively evading service.
The Malaysian courts have shown a willingness to grant substituted service where there is evidence of evasion. In the case of Bank Bumiputera Malaysia Bhd v Lorraine Esme Osman [1989] CLJ Rep 294, the court allowed substituted service after being satisfied that the defendant had left the country to avoid being served.
This case illustrates an important principle: the court prioritises ensuring that justice is not obstructed by a defendant’s avoidance tactics.
Application For Substituted Service
An application for substituted service is not granted automatically. The plaintiff must satisfy the court that genuine efforts have been made to effect personal service.
Typically, the application must be supported by:
- An affidavit explaining the grounds for the application; and
- Evidence demonstrating that all reasonable steps have been taken to locate and serve the defendant.
In addition, it is common practice for a process server’s affidavit to be filed, detailing the attempts made to serve the documents and why those attempts failed.
Modes of Substituted Service
If the court is satisfied, it may order service by one or more alternative methods. These commonly include:
- Posting the relevant pleadings at the defendant’s last known address;
- Posting the relevant pleadings on the court’s notice board; and
- Publishing and advertisement in a local newspaper.
When Is Service Considered Effective?
Once substituted service has been carried out in accordance with the court order, service is not immediate. The court order will specify a time period after which service is deemed effective.
This deemed service is crucial because it triggers the timeline for the defendant to enter appearance or file a defence. Failure to respond within the prescribed time may result in default judgment.
Key Takeaway
Substituted service ensures that legal proceedings are not stalled simply because a defendant cannot be personally served. While it departs from the usual requirement of personal service, it strikes a balance between procedural fairness and practical reality.
For plaintiffs, the key is to demonstrate genuine and reasonable efforts to locate the defendant. For defendants, it serves as a reminder that avoiding service does not necessarily mean avoiding legal consequences.
