Blog: Serving legal documents in the UK post-Brexit
Eugene F Collins partner Paul Dempsey and solicitor Niamh O’Brien highlight the options available when serving legal proceedings on a party based in the UK.
The United Kingdom’s official departure from the European Union has had a significant effect on cross border civil and commercial litigation and the service of Irish legal proceedings in the UK.
The EU regulation 1393/2007 provides the mechanism for the service of legal proceedings between Member States and applies to all EU Member States. When proceedings are issued in Ireland, practitioners rely on the Service Regulation in order to effect service of the proceedings on a Defendant residing outside the jurisdiction, but in another Member State.
Until recently, the Service Regulation applied to the service of Irish legal proceedings on a Defendant residing in the United Kingdom. As the Transition Period is now behind us, the United Kingdom is no longer a party to the Service Regulation.
However, the Hague Convention of 15 November 1965 addresses the service abroad of judicial and extrajudicial documents in civil and commercial matters and is now the applicable instrument for the service of Irish legal proceedings in the United Kingdom. As Ireland and the United Kingdom are part of the eighty-seven contracting parties to the Hague Convention, practitioners will now need to adhere to the procedure outlined in the Hague Convention when serving Irish legal proceedings on a Defendant residing in the United Kingdom.
It is important to note that under Article 68 of the EU-UK Withdrawal Agreement, the Hague Convention will apply even where proceedings were commenced in Ireland prior to 1 January 2021, but have yet to be served, unless the service process under the Service Regulation had commenced before the end of the transition period.
The provisions of the Hague Convention provide that service can be effected on a Defendant via the country’s Central Authority. The Hague Convention requires that each contracting country must set up a Central Authority to receive requests for service of documents within that country from Judicial Officers of another contracting country. The Master of the High Court is the designated Central Authority in Ireland and is also a Judicial Officer for the purposes of the Hague Convention. Practising solicitors, County Registrars and District Court clerks are also Judicial Officers.
Alternatively, under Order 11E, Rule 3 of the Rules of the Superior Courts, legal proceedings can be sent directly to the UK’s designated Central Authority, who will then effect service on the Defendant. Details of the appropriate Central Authorities can be obtained from the Office of the Master of the High Court. Service can also be effected through diplomatic or consular agents.
Once service has been effected in accordance with the Hague Convention, a Certificate of Service is issued by the Central Authority.
While the above is a well-established process, in many cases it can be quicker and easier to serve the documents on an authorised agent within the jurisdiction where the proceedings are commenced. For example, should a UK based Defendant nominate Irish solicitors to accept service on its behalf, the documents can then be served on the Defendant’s solicitors in Ireland via the usual methods and service will be deemed to be effective.
In light of this change, Irish parties should ensure that the provisions of the Hague Convention are complied with when serving Irish legal proceedings on a party based in the UK. Should there be a failure to comply with the relevant provisions, there is a risk that service may be deemed invalid at a later stage. This can result in a significant delay in the proceedings or, potentially, the proceedings being struck out.