Lawyer still has not served the defendant 16 months in. What now?

[Ian Curtis]

This is a high profile lawyer specialising in defamation whom my friend has engaged. It involves defamatory facebook posts which are totally untrue. He has a strong case (about as "straightforward" as is possible though nothing ever is straightforward in defamation) however this lawyer takes months to return calls and it turns out they have not served the other party despite 16 months having passed because the other party is refusing to accept being served.

Our understanding is that in that case the court can approve serving by email. Why has it not been done already?

My friend is too scared to berate the lawyer and too scared to switch to another lawyer because there is no guarantee of getting better service.

The defamation is a woman accusing him of stalking and sexual predation. My friend fears that in this political climate no lawyer will take such a case on regardless of how strong the case is. It is possible that the current lawyer has no intention to follow through and is just milking money from my friend.

 

[Nighthelyn]

Dear Ian Curtis,

Your friend should bring all the documents to another lawyer for a second or even third opinion.

To be clear while 16 months of delay due to failure to serve a claim does sound wrong even though I’ve seen longer. With defamation though substitute service (using non-traditional method of service) you need court approval - and such a motion may not be granted in certain situations - could be there really was a ground for the delay bear in mind part of the 16 months was during covid. Also due to the nature of this defamation I wonder if there are other factors at play.

Lawyers should not be affected by politics - but they are human too. But until retainer is terminated either party is free to switch or terminate.

Good luck!

-Nighthelyn

 

[Rod]

As I haven't checked the rules for defamation, and I do not know what State your friend lives in, it is possible the application is out of time and an extension needed. If your friend is 'afraid' of their lawyer, then possibly a new lawyer will be a better fit.

 

[Ian Curtis]

As I haven't checked the rules for defamation, and I do not know what State your friend lives in, it is possible the application is out of time and an extension needed. If your friend is 'afraid' of their lawyer, then possibly a new lawyer will be a better fit.

It is in Queensland. One has to wonder why it is out of time since the lawyer was given plenty of time. Anyhow, the lawyer didn't say that, he said the reason is that the accused is refusing to be served.

As for being "afraid", I explained that the political climate makes it unlikely he will find anyone to replace this one (he tried a few before settling on this one and they refused). Nevertheless I agree with you and @Nighthelyn that he ought to exhaust all defamation lawyers in Queensland before giving up an settling for what is shoddy legal service. Thanks for your comments.

 

[Rod]

I'm not in QLD so can't comment on whether the application is out of time.

People do not get to refuse service so I suspect we are missing important facts. It may be the person cannot be located, in which case the person applies for substituted service.