In the lion’s share of cases, I recommend to clients that, in Hague jurisdictions where they’re available, a higher cost service option may actually end up saving their clients a chunk of change in the long run. In just about all of those jurisdictions, we charge considerably more to have a defendant served privately than if we go through government channels; that’s just the way things work. But the initial price tag can be deceiving.
Let me clarify the options under two distinct parts of the Hague Service Convention:
With Article 5, we file a request with the government agency or court designated by the foreign country to field service requests. Government officials execute the requests and send us all but unassailable proof of service. Eventually. [By “eventually” I mean 3-4 months in much of northwest Europe, 5-6 months in Japan or Korea, and a year or more in China, Mexico , and India. [To be sure, none of those specific countries allow alternative options, so the rest of this really doesn’t apply to them.]
But where the destination country doesn’t object to it, Article 10(b) allows us to directly engage “competent persons” in that country:
- Process servers in Anglophone Canada and Australia;
- Solicitors in England & Wales, Hong Kong, and Ireland;
- Scottish messengers-at-arms; and
- Bailiffs in Québec, Belgium and the Netherlands.*
- There’s also a kinda-sorta-private method available in Israel, and although it technically happens under Article 5(b), I categorize it here in light of its huge value proposition.
COST, SPEED, AND CONTROL
Article 10(b) service often runs half-again as much as Article 5 service. Sometimes it’s double. And if you’re a do-it-yourself type, well… the difference is massive. But three huge benefits come from going the 10(b) route: Cost containment, speed, and control.
I got an email a few years ago from a lawyer in– well, I don’t even remember where the guy was– asking me if I could get his defendant served in Hong Kong. It seems he was coming up against his 4(m) deadline and had to get things rolling. Sure, I said. We can go through government channels and have it take several months, or we can go through my solicitor and have proof back in two or three weeks.
When I told him the cost for both options, he ghosted me, opting to do it all himself. But I kept tabs on the case just out of curiosity; he just hadn’t seemed too receptive to my advice. Two months after we spoke, he got called up on a show-cause order and had to submit an affidavit telling the court what he did, when he did it, and how soon he expected the Hong Kong Central Authority to send him a proof (he whiffed that question). The judge took him to task in a big way, and he blew at least three or four hours of otherwise billable time on the OSC.
A few months after that I checked the docket again, and saw that Hong Kong had rejected the request because he didn’t heed my strenuous drafting advice (Hong Kong really means Hong Kong, China). He amended and resubmitted his Hague request, caused more delay, and (I’m sure) thrilled the judge to no end.
Had he let me go the solicitor route for him, his OSC would have been mooted by an affidavit of service and perhaps even the defendant’s appearance. But how much money did he blow in the process? (That is, how much time can his firm not bill anybody for?)
It’s very simple, gang. Even the fastest of Central Authorities in 10(b) jurisdictions are going to take a few months to get a proof back to the applicant (plaintiff’s counsel or the court). In Canada, Australia, and Hong Kong, several months go by without a peep from the official channels. To this day, I still haven’t been able to confirm that Ireland’s Central Authority is functional. Sure, you have a beautiful safe harbor in federal 4(m) [or analogous state rules], so an OSC ought to be a snap, but that doesn’t save you from a grumpy judge or irritated client.
Let us and our overseas partners handle the matter (or find the right agent yourself if you have the kind of time necessary to vet them and properly instruct them), and you’re usually going to have proof in hand two or three weeks after you pull the trigger. Result: no OSC, no grumpy judge, no irritated client. Litigation proceeds relatively quickly.
When we engage a process server or solicitor or bailiff, they work for us. They’re motivated to do the job correctly because, (1) they’re pros and (2) if they don’t do things right, I go shopping for another overseas partner in the effort. They’re not going to knock on the defendant’s door one time, wait two minutes, and just walk away, only to tell me that service has failed. Why? Because if they don’t do things right, I go shopping.
Exceedingly rare is the foreign judicial official who is as diligent as somebody being paid to be diligent. An official isn’t going to call me to ask for further instructions. My guy in Toronto regularly pings me on Signal (because that’s the Double-Naught Spy communication platform) from the defendant’s front porch.
COUNTRIES THAT OBJECT
Unfortunately, if the destination country objects to Article 10, you’re out of luck as far as choices. But for those countries, make sure the paperwork is filled correctly out and your request is properly assembled & shipped (ahem, we do that, too– or you can DIY it with a little help), and have a little faith. Most Central Authorities around the world get the job done. Maybe not as quickly as U.S. or Canadian lawyers (and their clients) might expect, but eventually.
Where you have options, use them.
* Oddly enough, in Québec, Belgium and the Netherlands, we can have an English-competent defendant served without translation, so the bailiff option actually ends up being less costly than the official channel. On the other hand, France also allows direct engagement of bailiffs, and Italy and Spain allow us to retain in-country counsel for service petitions in local courts, but I’ve found that these avenues don’t save a whole lot of time in exchange for the cost.