How do you ensure that your cross border proceedings are validly served on your defendant?

Service within the EU was fairly straightforward up to the end of December 2020 as the EU Regulations provided for accepted methods of service for each country within the EU and permission to serve out of the jurisdiction was not required and so the process was much streamlined to the position which we now find ourselves in.

It had been hoped that the UK would have joined the Lugano Convention in its own right after Brexit as this provides a similar framework for service of proceedings on other Lugano Terrorities. Unfortunately, whilst the UK applied to join the Lugano Convention before we formally left the EU, the consent of all of the other members of the Convention is required. To date the EU has objected to the UK joining and so as it stands, we cannot rely upon the Lugano Convention when looking to serve proceedings outside of the UK.

We are currently left in the position where we need to look at what treaties are in place between the UK and other countries, which provide for service and the main convention relied upon for this purpose is The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“the Convention”). The Convention provides a set procedure for the service of court documents on parties located in one of its 79 contracting countries. Before serving English Court proceedings under the Hague Convention, it may first be necessary to make an Application to the Court for permission to serve out of the jurisdiction. Whether permission is required will depend on the contract between the parties and whether it contains an exclusive jurisdiction clause and so if in any doubt, to save any disputes as to valid service, it may well be worth simply applying for permission at the same time as you file proceedings at the Court.

The main method of service in The Convention is that requests for service coming from one contracting state are transmitted to the Central Authority of the state in which service is to be effected. There are other methods available but a number of contracting states have objected to service by other methods and so if serving on a Hague Convention state, we would recommend arranging service by providing the documents to be served to the Foreign Process Section at the High Court who will then send the documents to the Central Authority in the country state where the defendant is to be served.

The documents to be provided to the Foreign Process Office depend on the country where the Defendant is to be served but once the Foreign Process Office has everything that they need for service under the Convention, they will then send the papers to the Central Authority of the country where the defendant is to be served and they will then arrange for service. The Central Authority in the country of service will provide evidence of service to the Foreign Process Service who will then forward the evidence to you for you to file at Court as appropriate.