The first point to note is that service in accordance with the provisions of the EU Service Regulation 1393/2007 (“the Regulation”) is mandatory, and it is not possible to circumvent this procedure through an order for substituted service from the Courts of this country, or by other means (Hornan v Baillie  EWHC 285 (Ch)). However compelling the case for substituted service might be in the present circumstances, it is therefore simply not an option.
The primary method of service under the Regulation is for the serving party to send the claim form to the ‘transmitting agency’ in this country (that is, by filing with the Senior Master via the Foreign Process Section), which will then send the claim form to the ‘receiving agency’ in the Member State of the person to be served, which will itself then serve the claim form in accordance with its own law or by any method requested by the transmitting agency (provided that method is not contrary to the law of the ‘receiving’ Member State). It is also always possible to effect service in accordance with the Regulation by post, provided the postal service used is a registered letter with acknowledgement of receipt or some equivalent (per art.14). It may also be possible to effect service directly (that is, bypassing the ‘transmitting’ and ‘receiving’ agencies) through judicial officers, officials or “other competent persons” of the ‘receiving’ Member State, provided that is permitted under the law of that Member State (per art.15). Finally, it may be possible to effect service through diplomatic or consular agents in the receiving Member State, provided that Member State has not indicated opposition to this method of service (per art.13).
As in less straitened times, the first point to think about is what methods of service are permitted by the ‘receiving’ Member State: it is futile to assess the impact of Covid-19 upon service by diplomatic or consular channels if the ‘receiving’ Member State has indicated its opposition to service by that method, for example. At the time of writing, this information is available on the website of the Hague Conference on Private International Law (albeit by reference to the article numbers of the Hague Service Convention): https://www.hcch.net/en/publications-and-studies/details4/?pid=4074&dtid=2
What follows is then to consider the relative merits of each method of service under the Regulation:
- Service via the ‘transmitting’ and ‘receiving’ agencies is virtually guaranteed to be effected lawfully, and to be valid. As against that, it tends to be relatively slow. Whether this method will be significantly impacted upon by Covid-19 depends on the law of service in the particular ‘receiving’ Member State, and the status of infrastructure in that country. For example, if service by post is lawful in the ‘receiving’ Member State, its ‘transmitting agency’ would normally use that method of service, and the postal service in that Member State is currently functioning normally, Covid-19 is unlikely to present particular difficulties to effecting service lawfully.
- Service by post is likely to be particularly difficult as a result of Covid-19. The social distancing measures adopted by most countries within the EU mean that there are likely to be problems with the use of registered letters with acknowledgement of receipt. That said, the particular Member State in question may well have put guidelines in place to allow such postal services still to be used. This will be a matter to check with somebody within that Member State with local knowledge (preferably a local lawyer who will appreciate the interaction between the local laws of service and any Covid-19 guidelines).
- Service by diplomatic or consular agents in accordance with art.13 may well be severely disrupted as the consequences of Covid-19 stretch the resources available to those institutions.
The final point to bear in mind is that the Regulation does not apply where the address of the person to be served is unknown (per art.1(2)). In the applicable case, obtaining an order for substituted service by, say, email would bypass many of the difficulties Covid-19 has caused for other methods of service (although the most recent guidance from HMCTS ought to be consulted before making any application to the Court so that this can also be weighed in the balance).
This article was first published by LexisPSL.
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