In today’s global economic landscape, more and more US corporations are conducting business in foreign jurisdictions, and entering into contractual relationships with individuals and entities based abroad. The US Census Bureau reported that in 2017, the US traded in goods with the UK to the tune of approximately $56 billion in exports and $53 billion in imports. It is hardly surprising then, that disputes sometimes arise between those US parties and their foreign trade partners. In such cross-border disputes, a US plaintiff commencing legal action against a UK entity will often be required to bring those proceedings in a US court, and then effect service of process (ie the summons and complaint) in the UK.
Service upon a foreign defendant who is present (via a domestic subsidiary) within the US forum state (ie the state in which proceedings have been initiated) and can be served within that US forum state, is generally effective, absent any state specific rules that prohibit this (Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 707 (1988)).
However, many foreign defendants will not have a presence within the US forum state, and will therefore need to be served in their home country.
Rule 4 of the Federal Rules of Civil Procedure (FRCP) sets out the ways in which foreign individuals and entities who do not have a presence in the US may be served with US process in a foreign country:
In respect of a foreign corporate entity, unless federal law provides otherwise or the defendant entity has filed a waiver to service, it may be served outside the jurisdiction of the US in any of the manners prescribed above, except for personal delivery.
The most common method of service of US process on UK defendants is under the first of these routes, through the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). The US and the UK are signatories to the Hague Service Convention, having both ratified the convention on February 10, 1969.
Article 1 of the Hague Service Convention specifies that it will apply where:
Where the defendant’s address is not known, the Hague Service Convention will not apply. In such instances, it will be necessary for the US plaintiff to refer to FCPR rule 4(f)(2) which sets out the procedure for service where no international treaty applies, or equivalent state service rules, in conjunction with the local service rules in the UK.
Any service of judicial documents in the UK will also need to comply with the local service rules which are set out in Part 6 of the English Civil Procedure Rules 1998 (CPR). The relevant section of Part 6, which deals with service of documents from foreign courts or tribunals, governs the service in England and Wales of ‘any document’ in connection with foreign civil or commercial proceedings: this includes judicial documents as referred to in the Hague Service Convention, such as a US summons and complaint.
The Hague Service Convention provides several alternate methods for service:
The most common method of service of US proceedings in the UK is via the Central Authority for the UK, which is the Senior Master of the Queen’s Bench Division of the High Courts of Justice in London. While this method is not mandatory, many litigants choose to effect service this way, because if done properly, this method makes it very difficult for a defendant to challenge the validity of service.
Essentially, the process is as follows:
Although the Hague Service Convention does not specify a timeframe for service, plaintiffs should be aware that the service process could take a number of months. There are of course instances in litigation where timescale is critical, and in those cases, US lawyers may need to consider alternative options to service via the Central Authority. One such alternative is arranging direct service on the UK defendant through a local agent, if this is permitted under local service rules.
In the UK, parties to foreign litigation in a country which is a signatory to the Hague Service Convention can also effect service as set out in article 10, which states:
‘Provided the State of destination does not object, the present Convention shall not interfere with…(b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officials or other competent persons of the State of destination.’
Guidance under Part 6 of the CPR states that the Senior Master has taken ‘other competent persons of the State of destination’ to mean solicitors of the Senior Courts of England and Wales.
Consequently, if a US litigant decides to take this route, it is strongly advisable to instruct local counsel in the UK. Local attorneys will be able to ensure compliance with the service requirements, and advise on any limitations there may be. Local counsel can also assist in arranging for an appropriate agent to serve the proceedings.
Once the proceedings are served on the UK defendant, the US plaintiff must arrange for the process serving agent to prepare a proof of service, and have this filed in the US court where the action is pending.
In summary, there are a number of methods by which US litigants can serve process (and other judicial documents) upon individuals and corporate entities situated in the UK. It is strongly advisable to consult local counsel, who are familiar with local laws and procedures at the destination country and can effectively navigate the local service rules. The service of judicial documents, particularly in foreign jurisdictions, is a technically tricky area where ‘the devil is in the detail, and it is crucial to get it right in order to avoid inadvertently compromising the underlying claim.
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