I need to serve a claim form in a Hague Convention State. Given Covid-19 what do I need to think about?

It is assumed that the reference to the ‘Hague Convention’ is to the Hague Service Convention, concluded as part of the Hague Conference on Private International Law in 1965 (“the Convention”).

The first point to note is that where the Convention is applicable, service must be effected in accordance with its provisions, 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 (Cecil v Bayat [2011] EWCA Civ 135; that this is mandatory in all cases and not merely in the nature of guidance is confirmed by the approach of the High Court in relation the EU Service Regulation 1393/2007 in Hornan v Baillie [2012] EWHC 285 (Ch)).

The primary method of service under the Convention is for the serving party to send the claim form to the ‘Central Authority’ 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 Central Authority in the 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 this country’s Central Authority (provided that method is not contrary to the law of the ‘receiving’ state).  It may be possible to effect service through diplomatic or consular agents in the ‘receiving’ state, provided that the ‘receiving’ state has not indicated opposition to this method of service (per art.8).  It may also be possible to effect service in accordance with the Convention by post, or to effect service directly (that is, bypassing the Central Authorities) through judicial officers, officials or “other competent persons” of the ‘receiving’ state, provided that the ‘receiving’ state has not objected to this (per art.10).  It is also possible for a bilateral treaty with the ‘receiving’ state to set out other permissible methods of service.

As in less straitened times, the first point to think about is what methods of service are permitted by the ‘receiving’ state: it is futile to assess the impact of Covid-19 upon service by post if the ‘receiving’ 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: 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 Convention:

• Service via the Central Authorities 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’ state, and the status of infrastructure in that country.  For example, if service by post is lawful in the ‘receiving’ state, its Central Authority would normally use this method of service, and the postal service in that state is currently functioning normally, Covid-19 is unlikely to present particular difficulties to effecting service lawfully.
• Service by post may or may not be significantly affected by Covid-19. The social distancing measures adopted by many countries mean that there are likely to be problems with the use of ‘signed for’ deliveries, which will be an important consideration if this is required for effective service under the law of the ‘receiving’ state.  By contrast, if the ‘receiving’ state permits service by ordinary post, and the postal service in that state is functioning normally, Covid-19 is unlikely to have any significant impact.  This will be a matter to check with somebody within the ‘receiving’ state with local knowledge (preferably a local lawyer who will appreciate the interaction between the local laws of service and any Covid-19 guidelines in that state).
• Service by diplomatic or consular agents 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 Convention does not apply where the address of the person to be served is unknown (per art.1).  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.