Coronavirus mini-series: (6) a big problem for service on EU-domiciled defendants

Last week, we noted that service of documents abroad via the Foreign Process Section of the Royal Courts of Justice had been suspended. The implications of that decision are significant. Specifically, it may cause huge problems for service in cases involving EU-domiciled defendants. On one analysis, it will in some cases be impossible to serve.

The problem is this:

• Service in civil and commercial matters in EU Member States has to be effected in accordance with the Service Regulation (Regulation (EC) No 1393/2007) because it imposes a mandatory and exhaustive regime: C-325/11 Alder v Orlowska ECLI:EU:C:2012:824 at [24]–[25].
• The Service Regulation prevails over other international service conventions, such as the Hague Convention 1965: art. 20. It therefore does not matter that the Senior Master’s notice left open the possibility of service under alternative Conventions.
• Service under the Regulation generally has to be effected through a Member State’s designated transmitting agency (in England and Wales, this is the Senior Master of the Queen’s Bench Division who transmits via the FPS) by transmission between national agencies: Chapter II, Section I.
• There is provision for service by consular or diplomatic channels (arts. 12 and 13) or by post (art. 14). But this also has to be effected by the Senior Master forwarding the relevant documents to the Foreign & Commonwealth Office or posting them via the FPS: see the White Book commentary at 6.41.2.
• The only method of service that is apparently performable by an individual or their legal representative is “direct service” in accordance with art. 15. But this can only be done via a “judicial officer, official or other competent person of the Member State” in which service is to be effected.
• The Member States have to notify the European Commission who is a competent person for the purposes of direct service under art. 15 (pursuant to art. 23).
• Service under art. 15 cannot be effected by English solicitors unless they are specifically included on that list of competent people, which they probably will not be: Asefa Yesuf Import and Export and others v A.P. Møller [2016] EWHC 1437 (Admlty).
• The lists are maintained online here. Although some of the lists include competent persons who can effect service (e.g. bailiffs in France), some do not (e.g. Spain).

For those countries without any competent persons listed for service under art. 15, it is difficult to see how service on EU-domiciled defendants can be effected while the FPS remains suspended. If this analysis is right, then this could pose serious issues for any case with a foreign applicable law which has a non-extendable limitation period.

According to Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB) (considered here), apparently neither the lengthy six-month period for service abroad post-issue nor the possibility of an extension of time for service under CPR r. 7.6 will save a claim governed by Rome II if it needs to be issued and served before expiry of an earlier relevant limitation period according to the applicable law. The question of what emergency measures affecting limitation have been implemented in the foreign applicable law will also be of obvious importance.

There may be a way around this in cases involving EU motor insurers. These entities must appoint claims representatives in the UK capable of dealing with claims brought by claimants living there: Fourth Motor Insurance Directive, art. 4; Sixth Motor Insurance Directive, art. 21. The CJEU has held that service on these claims representatives may be valid: Spedition Welter GmbH v Avanssur SA (C-306/12) EU:C:2013:650. For some claimants, this may be the only option.