Domicilium citandi et executandi and other riveting stuff

I did some research in the last few days on service of a summons and suretyships (there was a link).  The reason for the research was an application for a rescission of a judgment on the basis that the summons was incorrectly served and further that the basis of the judgment that was ultimately taken, namely a suretyship agreement, was flawed.

Along the way I found myself exploring an area of the law that is surprisingly interesting.  The basis of the rescission application was that the judgment was void because there wasn’t proper service of the summons.  Proper service of a summons is a pre-requisite for the continued proceedings.  If a summons is not properly served then the foundation of that case falls away and you are stuck. 

Our rules of court deal with the various forms of service, one of which is service on a domicilium citandi et executandi.  This address is an address that is specifically and expressly nominated as the address at which a person will receive service of court papers, among other documents.  It is a particularly important type of address as it is possible to serve a summons, for example, on a domicilium address by literally nailing the summons to the door post in certain circumstances.  With other forms of service (for example service on a work address or home address), things are not so easy.  A domicilium clause in an agreement makes the commencement of litigation so much easier as it obviates the need to go and find the defendant to serve on him/her where he/she is where it becomes necessary to serve on the defendant (the rules relating to service of court papers are quite a bit more involved, this is a gross simplification).

The challenge in this particular case is that the summons was served on an address cited as a domicilium address whereas the suretyship agreement that formed the basis of the action did not identify the address as a domicilium address.  As a consequence, service appeared to be somewhat lacking and this undermined the proceedings as a whole.

The bottom line is that if you wish to make provision for a domicilium address in your agreements (suretyship agreements or otherwise), you need to expressly identify the address as being a domicilium address.  It is not sufficient to simply assume that the address is a domicilium address.  An address simply stated as the address of the sureties is really an indication of where they may be when the time comes to sue.  Ultimately the summons must come to the attention of the person sued.  The one exception is a domicilium address (and even there, if the domicilium address is a work address the plaintiff must still establish that the summons actually came to the attention of the defendant).

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