This is part of a series of bulletins for US lawyers and parties who may have litigation or disputes in England issued by partner Stephen Rosen who heads our UK/USA disputes team.

Bulletins from our UK/USA disputes team:

1) Pro-active steps to obtaining deposition evidence under the Hague convention.

2) Collective actions: England cautious catch-up with the US.

Service of US proceedings in the UK[1] involves considering the Hague Service Convention[2], the FRCP[3] and the rules of the English court[4]. It is a well-trodden path but still requires careful navigation and some methods of service have their uncertainties.

Rule 4 (f) of the FRCP permitting service abroad

This prescribes the service of US proceedings on an individual in a foreign country. It states:

“Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;[5]

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders”.

The above applies also to service on a corporation, partnership or association except that service on a corporation cannot be by the personal delivery option under rule 4(f)(2)(C)(i).

Article 1 of the Convention states that it applies in “civil or commercial matters”, where there is occasion “to transmit a judicial or extrajudicial document for service abroad”. However, it only applies where the address of the defendant to be served is known. If the address is not known, the US lawyer must consider instead the alternatives listed in rule 4(f)(2) of the FRCP (or an equivalent State rule if the case is pending in a US State court).

The Hague Service Convention – service via the English High Court as Central Authority

As the above provision makes clear, service in accordance with the Convention is not the only permissible and effective method by which US proceedings may be served on a defendant within the UK. However, the Convention has been ratified by more than 70 nations and in light of both the US and the UK having done so over 50 years ago the Convention’s mode of service via a Central Authority (see below) has become the safest method of choice for the majority of US litigants despite the delay that may be involved.

A key feature of the Convention is the requirement that each Contracting State designates a “Central Authority” which undertakes to receive requests for service coming from other Contracting States and to follow the procedural steps set out in the Convention.  Although some other options are available e.g post or direct service (and are dealt with below), the most common and recommended method of serving US proceedings on a defendant in the UK is via the Central Authority. It is the safest method of service because of the very limited opportunity it gives to a defendant to raise objections to service.

In the UK, the “Central Authority” is the Senior Master of the Kings Bench Division of the High Court (the Foreign Process Section). The UK has declared that requests for service made to the Central Authority will only be accepted if made by judicial, consular or diplomatic officers of other Contracting States and so in practice the request will usually be made by a US judge.

Effecting service under the Convention using the UK Central Authority involves four distinct steps.

1) A letter of request (letter rogatory) is sent to the Central Authority in the standard form appended to the up-to-date version of the Convention by the Court in the US in which proceedings are ongoing. Annexed to the letter of request are the documents which the US plaintiff is seeking to serve (usually the US complaint and summons).[6]  The documents have to be provided in duplicate.

2) At the second stage, if the request is approved, the Senior Master directs which mode of service to be used[7]. Service may be in accordance with one of the methods set out in Part 6 of the CPR or (save where inconsistent with the laws of this jurisdiction in relation to service of documents) by the method set out in the letter of request. Service itself will be carried out by a judicial officer or an agent of the judicial officer who reports to the Senior Master.

3) Once service has been effected, the Senior Master certifies that service has taken place[8]. Again, a prescribed form of certificate is used which specifies the date and method of service.

4) The certificate is then sent by the Senior Master to the US Court which sent the original letter of request together with a copy of the US court complaint and summons.

The service within the UK has to be carried out in accordance with the rules of service in Part 6 of the CPR since the Convention relates only to transmission of documents between Contracting States and not to the rules relating to the actual service of process within the State in which service is to be effected.

The Convention process is frequently used and is generally very effective. There are, however, two issues about which US lawyers should be aware.

First, the time factor. The request will be dealt with by a busy department of the court and the reliance upon that court to effect service can involve an element of delay- which can be months (but see possible alternatives below). The timetable of the US proceedings needs to accommodate that.

Second, as already stated, the Senior Master will not effect service in a manner specified in the letter of request if that method is incompatible with the rules on service set out in Part 6 of the CPR. If, therefore, the US litigant has particular reason to request service in a particular manner, whether as a result of the applicable US rules, factors inherent in the US litigation or the particular circumstances of the UK defendant on whom service is intended to be effected, the limits of Part 6 (which do not usually cause a problem) will need to be taken into account.

The Hague Convention – other modes of service

Where service is urgent, the US lawyer can consider effecting service by methods other than using the Central Authority procedure, but service must still be in accordance with CPR 6.  Proof of service will need to be filed with the US court in accordance with its requirements.

(a) Service by post is permitted

Article 10 of the Convention has provisions permitting this.

Article 10 (a) states that that: “Provided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad…..”

Guidance on the interpretation of article 10 is given in the Practical Handbook on the Operation of the Hague Service Convention which states that service by post under article 10 (a) is possible as an alternative to the Central Authority procedure if the following two conditions are satisfied: firstly, the conditions set by the law of the forum (the US court) for valid service by mail must be met – and should be carefully checked by the US lawyer-  and secondly the State where the proceedings are to be served must not have objected to postal service.  The UK does not object to postal service but service by post must be in accordance with the English court rules.

(b) Service by a solicitor is permitted

Article 10 (b) states:

“Provided the State of destination does not object, the present Convention does not interfere with ……… (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons [our emphasis] of the State of destination……”

The English court rules specify that “other competent persons of the State of destination” means Solicitors (Solicitors of the Senior Courts of England and Wales). The Solicitor will need to ensure that service is carried out in the manner and with the effect required by CPR Part 6.

(c ) Service by email is not recommended             

In 2024 the Special Commission on the Practical Operation of the Hague Service Convention considered whether “postal channels” within the meaning of article 10 (a) of the Convention included service by email and said that it did so provided the method of service is permitted by both of the Contracting States involved. However, the question of whether service of US proceedings by email would be valid has not yet been considered by the English courts and so we do not recommend its use.

(d ) Service by a process server is not recommended

If it is desired to effect service other than by using a Solicitor, for instance using a professional process server, the US lawyer needs to consider whether that is permitted by the US court, but the English position is uncertain about whether this would be valid service and so this method of service is not recommended.

The overall position remains that although service via the Central Authority is more time-consuming it places the plaintiff in a stronger position should a dispute arise regarding service.

Protection of the defendant

Whether the Central Authority method of transmission has been used between Contracting States or not, the Convention protects defendants from a default judgment. A default judgment is not to be given unless it is established that service was effective under the Convention[9]. If judgment has already been given, a defendant can apply for relief. In these circumstances careful regard has to be had to the relevant article of the Convention[10].

Recipient State’s objections

If a request for service complies with the Convention, a recipient State can only refuse to comply if it considers that doing so would infringe its sovereignty or security.  Importantly, it cannot refuse to comply solely because under its internal law it claims exclusive jurisdiction over the subject-matter of the proceedings or because its internal law would not permit the proceedings.

Serving a foreign defendant who is in the US – Hague Service Convention is not applicable.

The Convention does not need to be used if service can take place on a foreign defendant who is in the US in a way that satisfies the requirements of the US court. This is a matter for the US lawyer to decide but circumstances may include: –

• Service on a foreign corporation by serving its US subsidiary in the US.
• Service on a foreign partnership by serving a partner who is in the US.
• Service on a foreign individual who is in the US.

By Stephen Rosen head of UK/USA disputes team – prepared in conjunction with Phillip Patterson of Gatehouse Chambers.

[1] The Hague Service Convention applies to the whole of the UK, but this bulletin relates to the legal position in England and Wales only. The position in Scotland and Northern Ireland needs to be considered separately if service of US process is to take place there.

[2] The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (signed 1965).

[3] Federal Rules of Civil Procedure.

[4] The Civil Procedure Rules 1998 (“CPR”) – governing the practice and procedure used in the English courts.

[5] A foreign defendant may agree to waive formal service of process under FRCP 4(d).

[6] Article 3 of the Convention.

[7] Article 5 of the Convention and CPR Part 6.50.

[8] If service has not taken place the Certificate must give the reasons that prevented service (article 6 of the Convention).

[9] Article 15 of the Convention.

[10] Article 16 of the Convention.