Service of documents in England and Wales post-Brexit

Prior to Brexit, court proceedings based in EU member states were to be served on defendants in the UK in accordance with the EU Service Regulation (Regulation (EC) No 1393/2007) and vice versa.

Following the end of the transition period and the recently agreed EU-UK Trade and Cooperation Agreement, the EU Service Regulation is no longer applicable between the UK and the remaining 27 member states of the EU.

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Service Convention") will instead apply between the UK and the EU27 as all are signatories to the Hague Service Convention.

This article considers routes of service for documents in England and Wales post-Brexit and outlines the key changes now that the Hague Service Convention applies.

Primary method of service under the Hague Service Convention

This is no change here as the primary method of service envisaged by the Hague Service Convention is through a "central authority" authorised to transmit and receive requests for service. This was also the case under the EU Service Regulation.

The central authority for England and Wales is the Foreign Process Section ("FPS").

Direct and postal service under the Hague Service Convention

Under the EU Service Regulation, England and Wales did not allow for direct service. Postal service was only possible when following a specific procedure put in place by the FPS.

However, methods for valid service in England and Wales under the Hague Service Convention differ.   

Direct Service (by a Solicitor) – The UK has expressly stated that any person from a country that is party to the Hague Service Convention who is interested in a judicial proceeding (including counsel for that party) may effect service in the UK directly through a Solicitor admitted in the UK.

It may also be possible to effect service via process servers in England and Wales, provided this is permissible in the law of the forum. There is, however, no clear English law guidance on whether service via a process server is indeed a valid method of service of foreign proceedings in England and Wales.

It could be argued that a cautious approach should be adopted to ensure that, where possible, direct service in England and Wales under the Hague Service Convention is effected via a Solicitor.

Postal Service - The UK has not objected to direct service by post in accordance with Article 10(a) of the Hague Service Convention and it is therefore possible to effect service, in England and Wales, by post, where the Hague Service Convention applies. It is however important to check the laws of the country where the proceedings are taking place. Subject to any objection by a contracting state, postal service can be effected directly by the claimant, or through the FPS' postal service procedure. The more formalised FPS postal procedure is likely more time-consuming but may well place you in a stronger position should a dispute arise regarding service.

It is also important to note the potential difficulties that could arise when serving English court proceedings on defendants based in the EU27 countries. While not the focus of this article, several EU states do not permit postal service under the Hague Service Convention.

Conclusion

The rules around service in England & Wales are complex and have been further complicated by Brexit and the COVID-19 pandemic. 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 of the time to respond to claims, to which the Courts are likely to be sympathetic.  

Contractually agreed methods of service and the law in the serving country may well impact service and therefore legal advice should be sought. 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.