Transatlantic litigation: service of US proceedings in the UK under the Hague Convention

Posted: 08/03/2022

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 2021, the US traded in goods with the UK to the tune of approximately $56 billion in exports and $51 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. 

UK based defendants with a presence in the US forum state

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)).

Other UK based defendants and third parties

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:

• by complying with the terms of an international treaty or any other internationally agreed means of service that is reasonably calculated to give notice;
• if there is no internationally agreed means (or if an international agreement allows but does not specify other means), by a method that is reasonably calculated to give the defendant notice. These can include:
• methods prescribed by the foreign country’s laws for service in that country;
• as the foreign authority directs in response to a letter rogatory or letter of request; or
• unless prohibited by the foreign country’s laws, via:
• personal delivery of process (the summons and complaint); or
• using any form of recorded and signed for mail that the clerk addresses and sends and that requires a signed for receipt;
• by other means not prohibited by international agreement, as the court may order.

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:

• a document is to be transmitted abroad for service in a signatory country;
• the address of the entity or individual to be served is known;
• the document is judicial or extrajudicial in nature; and
• the document relates to a civil or commercial matter.

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. 

Methods of service under the Hague Service Convention

The Hague Service Convention provides several alternate methods for service, including:

• via a Contracting State’s designated Central Authority;
• through international postal channels;
• direct service through an agent in the destination state;
• service through diplomatic or consular channels; and
• service under the destination state’s local rules.

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:

• the authority or judicial officer competent in the US state where the action is pending completes and executes a ‘Letter of Request’ (also known in the US as ‘Letters Rogatory’) in the mandated form, and sends it to the UK Central Authority;
• the Letter of Request must be accompanied by the US summons and complaint (and any translations into English that are required). The Letter of Request and accompanying documents must be provided in duplicate;
• the Senior Master (as the UK Central Authority) will direct a judicial officer or agent to serve the summons and complaint on the UK defendant in the manner set out in the Letter of Request, or in a manner permitted under the CPR (eg via a local agent);
• once service has been effected, the UK Central Authority will complete a ‘certificate’ in the mandated form, certifying that service was effected, the date service was effected and the manner in which it was effected;
• the UK Central Authority will then send the certificate of service, complete with the seal of the Senior Courts, to the originating US court/authority which requested the service of proceedings, along with a copy of the summons and complaint.  

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 officers, 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.

Conclusion

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 complex 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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