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Are You Being Served? Rules On International Service in Family Cases

Sarah Lucy Cooper, barrister, Thomas More Chambers considers the issue of international service in family cases







 











Sarah Lucy Cooper
, barrister, Thomas More Chambers

"Service" may appear to be a rather dry topic but it is absolutely vital to get it right in international cases, in order to comply with the FPR and in case you need to engage the help of the overseas court. So be warned specialist advice is needed in such cases.

As we know, in the courts in England and Wales, in order to effect service of applications or divorce petitions, almost anything goes – Facebook, email, carrier pigeon. Provided you can prove that the receiving party was aware of the proceedings ie that there has been "transmission", that is good enough for our courts. If your client has received a text from the other side stating "up yours, I won't be there on Thursday", there has been effective service as far as our courts are concerned because the receiving party clearly knows about the hearing. We make no distinction between transmission and formal service.

The reason that our rules on service are so flexible (some may say, lax) is not that we have no rules – we do [see FPR 2010 rule 6.4, for example] but it is down to the other provisions allowing substituted or alternative service or even no service both for the divorce itself and other family applications:

"6.19
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may direct that service is effected by an alternative method or at an alternative place.

(2) On an application under this rule, the court may direct that steps already taken to bring the application form to the attention of the respondent by an alternative method or at an alternative place is good service.

(3) A direction under this rule must specify –

(a) the method or place of service;
(b) the date on which the application form is deemed served; and
(c) the period for filing an acknowledgment of service or answer."

6.20
(1) The court may dispense with service of the application where it is impracticable to serve the application by any method provided for by this Part.

(2) An application for an order to dispense with service may be made at any time and must be supported by evidence.

(3) The court may require the applicant to attend when it decides the application.

Service by an alternative method or at an alternative place"

6.35
Rule 6.19 applies to any document in proceedings as it applies to an application for a matrimonial or civil partnership order and reference to the respondent in that rule is modified accordingly.

6.36
The court may dispense with the service of any document which is to be served in proceedings."

In addition, FPR 6.16 provides for deemed service in certain other cases. The overall effect in the courts of England and Wales is that divorce petitions and applications are often served in unusual ways but the court accepts such service in any event.

A recent example is the case of Wilmot v Maughan [2017] EWCA Civ 1668 in which the Court of Appeal decided that regardless of the fact that a husband in Turkey had not been served properly pursuant to the Hague Service Convention 1965 [see below] but had instead been served by email, the court had power to order service out of the jurisdiction by an alternative method – even if, as appears to have been the case, it had never expressly said that it was doing so …. !

However, some readers may be shocked to find out that as a result of the somewhat pragmatic approach to service, our regime is the source of some amusement amongst some overseas lawyers in relation to this issue. Overseas lawyers and judges from many jurisdictions simply would not accept that documents can be emailed, sent by Facebook or handed over by a retired policeman who thinks he is James Bond.  Indeed, postal service is actually prohibited in many jurisdictions. Why? Presumably because their postal system lacks integrity. Personal service effected by an individual may be a criminal offence in some overseas domestic criminal laws. The stark truth is that if you fail to abide by the rules, the overseas court is very unlikely to assist you.

It is a fundamental tenet of the conflicts of law, that procedural rules (rather than substantive law) always follow the domestic law of the jurisdiction where they are to be implemented. Clearly therefore, any service which is to be effected overseas must comply with the overseas domestic law. This is reflected in the FPR itself which states :

"6.43
(1) This rule contains general provisions about the method of service of an application for a matrimonial or civil partnership order, or other document, on a party out of the jurisdiction.

Where service is to be effected on a party in Scotland or Northern Ireland
(2) Where a party serves an application form or other document on a party in Scotland or Northern Ireland, it must be served by a method permitted by Chapter 2 (and references to 'jurisdiction' in that Chapter are modified accordingly) or Chapter 3 of this Part and rule 6.26(5) applies.

Where service is to be effected on a respondent out of the United Kingdom
(3) Where the applicant wishes to serve an application form, or other document, on a respondent out of the United Kingdom, it may be served by any method –

(a) provided for by –

(i) rule 6.44 (service in accordance with the Service Regulation);
(ii) rule 6.45 (service through foreign governments, judicial authorities and British Consular authorities); or

(b) permitted by the law of the country in which it is to be served.

(4) Nothing in paragraph (3) or in any court order authorises or requires any person to do anything which is contrary to the law of the country where the application form, or other document, is to be served."

It goes without saying that a jurisdiction's domestic law may of course, incorporate any international conventions, regulations or agreements by which it is bound.

International Conventions
The UK is a signatory to the Hague Convention on Service 1965 and the 2007 EU Regulation on Service [Denmark though not a member of this Regulation has chosen to apply it, by virtue of a separate declaration]. Importantly, given Brexit, all of the EU states are also members of the 1965 Hague Convention. There is plenty of information available about both agreements giving details as to what types of service each state will accept including:

Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters -  see here

Council Regulation (EC) 1393/2007 - see here and here

It is important to be aware that many other states are, by no means, as flexible as ours in relation to the issue of service.

There are also various bilateral accords which may assist such as with Algeria, Iraq, Lebanon and the UAE.

Crucially, however, virtually all of these international agreements are dependent upon the documents being properly translated prior to service. A failure to provide a translation may render the process null and void.

The 1965 Hague Convention
The 1965 Hague Convention on Service was ahead of its time as it provided for a mechanism to ensure that regardless of the eccentricities of domestic law, on an international level legal documents could cross continents.

The Hague Service Regulation has 73 contracting parties and perhaps surprisingly given its age, this number continues to grow. For example, it entered into force in Tunisia at the start of 2018. It includes various very useful jurisdictions including India, Pakistan, Canada, USA much of the Caribbean and South America. The reservations lodged by particular jurisdictions must be taken into account and some are rather interesting including, in some instances a prohibition on postal service, personal service, service by consular officials etc.

Nonetheless, the Hague Convention continues to evolve and is by no means rooted in antiquity despite its venerable age. Every few years a commission sits to consider developments, in particular in relation to the increasing use of various forms of electronic service.

Foreign Process Section
These two international agreements operate in a very similar way, namely to provide a sending and a receiving authority in each state "the Central Authority". In England and Wales, the authority, at the date of this article is the Foreign Process Section:

Foreign Process Section
Room E16
Royal Courts of Justice
Strand
London WC2A 2LL

• Telephone: 0207 947 6691/7786/6488/6327/1741
• Email: foreignprocess.rcj@hmcts.gsi.gov.uk

In my experience The Foreign Process Section are incredibly helpful and have a store of information relating to all sorts of exotic locations – the only place that the author has ever seen them stumped by was Honduras!

Both agreements also provide for alternative methods for service but watch out as it may well be the case that these are not accepted by the particular receiving state you are interested in – you must check and check again who accepts which method:

Diplomatic Channels
Article 8 of Hague and Article 12 of the EU Regulation of service by diplomatic or consular agents providing that the receiving state agrees to this – many do not or only agree if the person to be served is a national of the sending state.

If you decide to serve documents through diplomatic channels instead, then you must pay a Consular Fee to the Foreign & Commonwealth Office (FCO) for this service. Currently, the fee is £150 and apparently can be made by phone on 020 7008 4126 by credit or debit card.

Postal Service
Both agreements also provide for the possibility of postal service – provided that the receiving state does not object to such service – Article 10(a) Hague and Article 14 EU Regulation.
Service by post is only effective if:

(a) service by mail is allowed by the law of the state of origin – clearly the UK allows postal service;

(b) all the conditions imposed by the law of state of origin have been met

(c) the state of destination has not objected to the use of postal service (Article 10(a))

All sorts of countries do object to service by post including China, Germany, Mexico, Norway, Russia and Switzerland. In addition, there are other countries which whilst they do not consider postal service to be an infringement of their sovereign powers, they would not necessarily consider it to be valid service either – Japan being one such country.

Issues can still arise even where postal service is accepted by a receiving state. One such being whether service via a private postal service such as DHL constitutes postal service? – A court in New York has said "no" [Mezitis v Mezitis NY LJ 21.11.95 at 25, col 5]. Other cases both in the USA and elsewhere have accepted that FedEx, DHL etc. are a form of postal service but it is worth exercising caution on this issue if there is a lack of clarity in a particular jurisdiction.

Personal Service
This is dealt with at Article 10 (c) of Hague and Article 15 of the EU Service Regulation. This is extremely controversial in many jurisdictions. Practitioners need to bear in mind that even where a receiving state indicates that it would accept personal service – what it is accepting is personal service according to the domestic law of the receiving state. This may be wholly different from what we understand to constitute personal service, namely any member of the public who is prepared to confirm their actions in a sworn statement.

In many jurisdictions – in particular civil law jurisdictions – such conduct might constitute a criminal offence let alone not amount to good service. Only a state institution can effect personal service in many jurisdictions. The author has seen Portuguese proceedings personally served by the Portuguese police as an example. Other countries may use "huissiers" ie court bailiffs to effect personal service. Very few jurisdictions would accept that a member of the public could carry out such an important task.

Electronic Service
Ultimately the acceptance or not or forms of electronic service is a matter for individual states there being no umbrella agreement in this respect. Some states are now willing to consider such service as a "functional equivalent" of "postal service" but beware because some are not! In Spain for example, there is an electronic platform maintained by IT companies which is used as a way to serve litigants – albeit so far only domestically.

Importantly, both international agreements only apply to the extent that service is in fact being effected in a state which is a party to one of the agreements. Therefore, it must be a pre-condition of using either of these agreements, that the physical address of the defendant is known to be in a contracting state. Accordingly, a defendant whose whereabouts are unknown would not qualify under either of these international agreements.

There is also a Universal Postal Union Convention which was adopted in Doha in October 2012. This provides that members of the Universal Postal Union may participate in electronic postal services. Various jurisdictions including Switzerland, France and Spain now have secure electronic postal services. These. However, France for example, deems that a sender located outside France is considered to be located inside France if they use the French postal service's website. So far it is not clear that any of these services have been used in cross-border cases rather than within those jurisdictions.

Various common law jurisdictions including Canada, UK, Australia and USA have permitted service on foreign defendants by email where traditional methods of service have been unsuccessful.

Civil law jurisdictions appear, in general, much less keen on such forms of service. To the extent that amendments have been made to their domestic laws, such changes have been to allow electronic service only when the litigant has already consented to such service. For example France, Argentina, Germany, Brazil. In addition, most of these jurisdictions require a digital signature and the use of secure platforms.

There are obviously real issues in relation to unencrypted emails, spam filters, the lack of notification that an email has been received and the fact that there are no guarantees that the email has not been altered if there is no digital signature. Common law jurisdictions have been willing to use their discretion and consider the details of the electronic service and adopt a pragmatic approach. For example has the email bounced back or has a read receipt been received?

In relation to other electronic means of service, Australia was probably the first jurisdiction to accept service by Facebook – all the way back in 2008 – MKM Capital Property Ltd v Corbo SC608/2008. This has been followed in Canada in 2009, New Zealand in 2009 and apparently a case from Hastings County Court approved service by Facebook in 2011! Twitter has also been used in the UK albeit that the order had to be served via the Direct Message function given the limit of 140 characters. Equally an online message board was used in Canada in 2013. However, it is not at all clear that any of these cases involved a cross-border recipient. 

In summary, take nothing for granted when serving court proceedings overseas and remember that "when in Rome, do as the Romans do".


18 October 2018