HomeInsightsCOVID-19 – Serving court proceedings on foreign companies just got much harder

The service of documents abroad via the Foreign Process Section (FPS) of the Royal Courts of Justice had been suspended according to Court guidance issued recently in light of the COVID-19 pandemic.  This is likely to cause significant difficulties for those in or likely to be in dispute with EU-domiciled  companies and individuals.

The new guidance stipulates that the FPS is unable to process tracked postal service requests and the service of judicial and extra-judicial documents is suspended, together with the service of court documents on parties outside of the jurisdiction.  Service in a country which requires service through foreign governments, judicial authorities or British Consular authorities, which would normally be transmitted through the Foreign & Commonwealth Office, is also suspended.

The guidance does note that parties can attempt to serve court documents outside of the jurisdiction without the involvement of the FPS in compliance with the Service Regulation, the Hague Service Convention or any other relevant bi-lateral treaty, but this is likely to be problematic:

Service in civil and commercial matters in EU Member States has to be effected in accordance with the Service Regulation (which also prevails over the Hague Convention).  Service under the Regulation generally has to be effected through a Member State’s designated transmitting agency (ie. the FPS in England and Wales). Similarly, any service by consular or diplomatic channels has to go through the Foreign and Commonwealth Office or FPS.  The only method of service that is apparently performable by an individual or their legal representative is “direct service” in accordance with article 15 of the Service Regulation. But this can only be done via a “judicial officer, official or other competent person of the Member State”.

Each Member State needs to notify the European Commission as to the competent persons for the purposes of direct service under article 15 of the Service Regulation. The lists of competent persons can be found here, which includes a search tool to help you to identify those persons competent for the service of documents.  The lists differ from country to country: for example, bailiffs are listed as competent persons for the service of documents in Greece, whereas the list for Spain does not list any competent for persons for the purpose of service.  In those countries where there is no competent person listed for service it is difficult to envisage how service can be effected until the FPS re-opens.

The current pandemic continues to cause a significant rise in tensions across cross-border commercial relationships.  Whilst litigation may be a last resort for many, the difficulties posed by the current closure of the FPS may make it easier for foreign companies to avoid their obligations without the threat of the swift service of court proceedings.

In addition to the service of documents, the closure of the FPS has also affected the taking of evidence: the examination of witnesses in respect of requests received from foreign courts have been suspended until 23 June 2020 or until further  order.  Requests for the registration of foreign judgments are similarly not being processed.