[Dateline: Pittenweem, in the Kingdom of Fife. I’m in Scotland this week, having just attended the wedding of the daughter of some old friends. This is, without question, my favorite country to visit, and I’ve been coming since college. Nice people here.]
Most of us in the U.S. have a fairly cinematic image of Scotland in our heads– usually something to do with Gene Kelly waking up in a mystical village & falling in love with Cyd Charisse (and who wouldn’t?), or Mel Gibson with half a blue face, before he really went nuts. The beach in the picture above? Yeah… three words: Chariots of Fire.
But there’s quite a bit more to this northern half of Great Britain. Serving process in Scotland is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue is hearing the matter, but it’s a different system than in its fellow U.K. (for now, anyway) members.
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 pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. You have to file a Hague Evidence Request. Dramatically different from serving a summons or notice.
Now, here’s how service is done in Scotland:
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.
Article 10 alternative methods
- Mail service is available, depending on where you are, but it’s a bad idea anyway.
- Service under Article 10(b) is different here than in England. To effect service under this alternative, litigators may contact a Messenger at Arms, an official in Scots Law roughly (very roughly) akin to an English bailiff or a French Hussier de Justice.
The U.K.’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.