We ain’t building rockets here. But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving. Serving process in the British Virgin Islands is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue* is hearing the matter– in exactly the same way as service in England and Wales. Still an overseas territory, the United Kingdom has extended the Convention’s coverage to the archipelago. A critical note, though… that archipelago straddles an international boundary– between the United Kingdom and the United States. On one side, the BVI, and on the other, the USVI. Some confusion tends to result when someone calls me to “serve a defendant in the Virgin Islands” and I respond… which Virgin Islands?
If you’re serving in the United States territory, handle it no differently than you would in Puerto Rico or the District of Columbia.
But in the British islands… think Hague methods.
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 another absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas. Theoretically, you can serve it, but it won’t do much good.
And the nuts & bolts aspect of our show, in case you need to serve a resort or one of the corporations that have set up a figurative (ie: legal) home in the BVI:
Article 5 Service
- Translate the documents. But the UK’s declaration to Article 5(3) requires that documents be in English, so… game over, right? Pack up and go home? Not so fast, counsel… make sure your individual 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 several months from submission to return of proof.
Article 10 alternative methods
- Mail service is available, but it’s a bad idea.
- Service via private agent (process server) is available to U.S. litigants under Article 10(c). 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 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.
* For Canadian litigators, Hague channels are certainly available, but there may be a Commonwealth mechanism that makes the procedure even simpler.