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Service of documents after Brexit
This guidance sets out the implications for UK lawyers seeking to serve EU entities with documents from the expiry of the Brexit transition period.
It’s relevant for UK lawyers seeking to serve cross-border documents in civil or commercial matters in relation to EU member states.
From the end of the transition period (31 December 2020), Regulation (EC) No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters (service of documents) is no longer applicable between the UK and the EU member states.
The Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil and commercial matters has instead become applicable between the UK and those EU member states which are part of the convention.
The UK acceded to the convention in 1967. All 27 EU member states are signatories.
To date, the convention has regulated the service of documents between the UK and the EFTA member countries (with the exception of Liechtenstein) and Denmark.
The convention is widely applied: the total number of contracting parties is 78.
Numerous aspects of the service procedure are regulated by the convention. Aside from methods provided for under the convention, it also permits other methods of service as long as they’re sanctioned by the receiving state's internal law (Article 19).
State parties of the convention cannot object to a mode of service as long as it satisfies the terms of the convention, unless the state would deem compliance with the same an infringement of its sovereignty or security (Article 13).
Methods of service under the convention
The convention is applicable to all civil and commercial cases and provides for three basic methods of service (Articles 1 and 6 to 10).
Through the central authority
The most formal method is through the central authority (Article 2).
Service through the central authority requires the sender to transmit the summons and complaint, and complete a service request form and a form summarising the document to be served (Article 3).
Only forms on pages 1 and 4 must be filled in. See the guidelines for completing the model forms.
Having received the appropriate forms, each central authority may effect service in accordance with its country's internal law.
Provided it conforms with internal law, the documents may be served by a method requested by the sender (Article 5).
Article 5 further stipulates that the document may always be served by delivery to an addressee who accepts it voluntarily.
A certificate stating that the document was served is completed by the central authority upon service. This stipulates how and upon whom service was made, and the date and place of such service.
The certificate then goes back to the individual who requested service (Article 6).
Through competent persons
The second method allows service to be effected directly through diplomatic or consular agents, judicial officers, officials or other competent persons (Articles 8, 9, 10(b), (c)).
The receiving state can object to such service and some states have opted to oppose full application of Article 8:
“Each contracting state shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents. Any state may declare that it is opposed to such service within its territory…”
Through the mail
The least formal method of service is that designated under Article 10(a), which permits judicial documents to be sent directly through the mail, provided the receiving state has not objected.
Article 10 states:
“Provided the state of destination does not object, the present convention shall not interfere with - (a) the freedom to send judicial documents, by postal channels, directly to persons abroad…”
Designation of central authorities
According to Articles 15 and 16, each state must designate all prescribed central authorities and agencies established by each member nation to receive and serve documents forwarded by other member nations.
In order to identify the appropriate authority to be tasked with effecting service in any particular member state, you must consult the list of reservations and declarations for that state.
Each signatory has the right to state its opposition, if any, to the service methods provided for under the convention, other than service through the central authority.
Most of the EU 27 states have registered the following objections:
- objection to service, as proposed in Article 8 paragraph 1 (service upon persons abroad without application for compulsion and directly through diplomatic or consular agents) unless the document is to be served on a national of the state in which the document originates. You may have to apply for compulsion and serve directly through diplomatic or consular agents if you want to serve on a national of the receiving state
- objection to methods of service set out in Article 10 (freedom to serve directly by post; freedom of judicial officers or interested persons to serve through judicial officers, officials or other competent persons in the receiving state)
According to Articles 2 and 21, signatories can additionally declare any stipulations with respect to the entry of, or relief from, a default judgment.
The main declarations made pursuant to Articles 2 and 21 are in respect of Articles 15 and 16:
- Article 15 paragraph 2 – freedom to give judgment even if document has not been served by a method prescribed by internal law; and document delivery cannot be proved (with certificate of service or delivery), as long as:
- the document was transmitted by one of the methods provided for in this convention
- no less than six months have passed since transmission, and
- no certificate of any kind has been received although reasonable effort to obtain through competent authorities of the state can be proved
- Article 16 paragraph 3 – a judge may give judgment even if no certificate of service or delivery has been received, subject to the three criteria in the point above
- Article 16 paragraph 3 – most states have declared that following judgment, an application for relief will not be entertained if it’s filed after one year following the date of the judgment
Most states require documents to be translated in the official language of the receiving state in order for service to be effected (Article 5).
Declarations and reservations
While this guide looks at the general position adopted, each of the EU 27 states exercised its right to make declarations and reservations in respect of the full text of the convention.
Accordingly, you must consult the list for the specific receiving state:
Instituted proceedings: cases pending at the end of transition
Under article 67 of the Withdrawal Agreement, EU rules on jurisdiction, recognition and enforcement of judgments will continue to apply to UK-EU cross-border disputes where civil or commercial proceedings have been instituted before the end of the transition period.