We ain’t building rockets here. But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination. Serving process in England & Wales is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter. To be sure, service in Scotland and in Northern Ireland are handled differently, even though the United Kingdom as a whole signed onto the treaty (similarly, Canada has different methods for service depending on jurisdiction).
Some background is in order, if you’re so inclined, before we cut to the chase.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. At least not if you want it to work. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, for the chase scene.
No, not a chase involving those guys. They aren’t even on the BBC anymore.
But they are on Amazon, so if they crash into your house while taping a new show… here’s how service is effected in England & Wales:
Article 5 Service
- Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English. Game over, right? Pack up and go home? Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense. Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the Central Authority.
- Sit tight. It may take a while—likely three or four months from submission to return of proof.
- If your defendant is an individual, there is a significant chance that your Article 5 request will fail. The English Central Authority uses Royal Mail to carry service of process, and if the defendant doesn’t sign for the delivery… no dice. You get a very pleasant notice from London inviting you to try again.
- UPDATE (March 25, 2020): We’ve been notified that “Due to Covid -19 The Foreign Process section of the high Court is closed until further notice.” Once the pandemic subsides, I expect operations to return to normal fairly soon, but as with every civilized country in the world, delays will result. Article 10 remains available– at least insofar as solicitors and process servers are willing to handle delivery. Service by mail is likely no longer legally viable (at least for the time being); see here for more.
Article 10 alternative methods
- Mail service is available, depending on where you are, but it’s a bad idea anyway.
- Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is the only truly viable option for serving individual defendants in England & Wales, but still the better method for serving entities, too. Either way—and this is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.
The UK’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
A bit on Wales… I finally got to visit the place this summer during a CLE conference in England. [Each summer, my alma mater, UMKC, hosts a program at St. Edmund Hall, Oxford. Cardiff is a very short train ride away.]