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The COVID-19 pandemic has seen a number of European countries, including England & Wales, suspend service of documents through their Central Authority and Foreign Process Section, the delegated authorities dealing with transmission and service of documents under the EU Service Regulation and the Hague Service Convention.
As England & Wales do not allow for direct service under Article 15 of the EU Service Regulation, with service via the Foreign Process Section and other diplomatic channels being suspended, service under the regulation is currently not possible.
Whilst this limits the methods for service available to EU and non-EU member states looking to serve documents in England & Wales, there are still other routes of service under the Hague Service Convention to consider. We have summarised these below.
- Direct postal service – The serving party will need to demonstrate that the documents were served at the correct address, which is provided for in the English Civil Procedure Rules. In the case of a defendant company, due to the restrictions currently in place in the UK, some businesses may not be open, but it is likely that most will be accepting postal deliveries or having their post redirected.
However, if a defendant company does not receive the document due to being away from the principal office, this may well be used as a reason for not responding to the judgment and for seeking an extension to respond to the proceedings once the restrictions are lifted.
- Personal service – This is normally carried out by a process server. The majority of firms offering process serving facilities are continuing to operate as normal. If serving on an individual, they are unlikely to be at their usual business addresses, so you may need to look for alternatives, such as home addresses.
However, some caution should be taken if using this approach, as there is no clear English authority as to whether service of foreign proceedings by this method will be held as a valid method of service.
- Service by a Solicitor – Any person who is from a country that is party to the Hague Convention may also serve proceedings through an English Solicitor. The English solicitor can then use any of the methods permitted by English law, such as by postal service, by process server and by electronic means. It is also possible to make an application for an alternative method of service if it is not possible to follow the usual methods.
The rules around service in England & Wales are complex and have been complicated further by the pandemic, but there are still ways to ensure documents are served validly. However, care needs to be taken with service at this time to avoid a subsequent application from a party claiming not to have received the documents and requesting extensions to the time to respond to claims, to which the Courts are likely to be sympathetic.
In certain circumstances, it may be sensible to use more than one method of service to combat any later allegations of procedural defects in respect of service.
Should you have any questions about the service of documents in England & Wales, please do not hesitate to contact Alice Daniels in Michelmores’ Commercial & Regulatory Disputes team.
This article is for information purposes only, and is not a substitute for legal advice, and should not be relied upon as such. Please contact our specialist lawyers to discuss any issues you are facing.
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