Service Hague Convention

Hague Convention on Service

The Hague Convention makes provision for service abroad of judicial and like documents in civil and commercial matters.  A wider category of countries is party to the Hague Convention on the service abroad of  judicial and extrajudicial documents in civil and commercial matters.  These include Denmark, most of the EU countries, the USA, Switzerland, Turkey, Ukraine, Russia, Mexico, Israel, Kuwait, Canada, Argentina. The Hague Convention on the service abroad of judicial and extrajudicial documents in civil and commercial proceedings is applicable to the United Kingdom after Brexit.

Each state designates a central authority to receive and arrange for transmission of  requests for service from other states.The central authority is the Master of the High Court in Ireland. When requested the authority of the state or other judicial officer is required to forward to the authority in the addressee state a request in the form of the conventions.

The Rules apply to the service of any summons, notice, documents, petitions, affidavits, citations, pleadings or other form either issued under the Rules or lodged for service under the Order, where such service is required to be effected out of the jurisdiction in a Convention country and where for such service, leave has been granted or is unnecessary and where the request for service has been made to the Central Authority in the prescribed form.

Mechanics of Service

The central authority is  required to serve the document itself or arrange for it to be served by the appropriate agency either by a method prescribed by the internal law for the service of documents in the state of service relating to domestic legal action or by a particular method requested by the applicant unless that is incompatible with the latter’s law.

Any party to proceedings of a civil or commercial nature commenced under the Superior Court Rules and any competent authority or judicial officer (including a solicitor)  who wishes to have a document served may lodge with the Central Authority,

• a request for service of the document specified in the Convention;
• two copies of the document to be served;
• a translation of each document in the official language or one or more of the official languages of the State addressed unless already in that official language or one of the official languages of the State and
• an undertaking to pay the costs of service, payment or reimbursement of which may be sought by the Central Authority.

The competent authority and competent judicial officer for the purposes of the Convention are the Central Authority (Master of the High Court in Ireland),  a practising Solicitor, a County Registrar or District Court Clerk.

The Master may certify that the conditions of the Convention apply and authorise transmission of the request. Upon certification, the Master is to return it to the  party concerned, with the certificate for transmission directly to the central authority of the state concerned. This will generally be the solicitor for the party seeking service

Obligations of Central Authority

In any case, in which a request is lodged with the Central Authority by a person who is not a competent authority or competent judicial officer, the Central Authority on being satisfied that it complies with the rule shall, forward the request and accompanying document to the Central Authority of the State in which service is to be effected.

In any case in which a request is lodged with the Central Authority by a competent authority or by a competent judicial officer the Central Authority may certify that:

• The person who has submitted the request to the Central Authority is, under the law of the State, an authority or a judicial officer, competent to forward a request under the Convention as the case may be.
• The document sought to be served is one which requires to be served in the State addressed.
• The request otherwise complies with the requirements of the Convention.
• The Central Authority has authorised the transmission of the request,

and having so certified the Central Authority shall return the request to such competent authority or competent judicial officer with such certificate for transmission by him directly to the Central Authority of the State addressed.

The competent authority or competent judicial officer is required to be satisfied that it complies with the requirements of the rules and if so satisfied he forwards the request and accompanying documents to the central authority of the state from which services requested. If it does not comply, the Master is to inform the applicant and specify the objections.

The Central Authority shall maintain a list of countries which are Convention countries and the official languages thereof and shall maintain a list of the Central Authorities of each such country. It is to be available for inspection in the Central Office during office hours and copies are to be available on request.

On receipt of a certificate of service under the Convention from the Central Authority of the State addressed, the same shall be transmitted to the party who lodged the request. Any certificate purporting to be issued by the Central Authority is presumptive evidence of the facts stated in it.

Procedure in Ireland

A person wishing to have documents served under the Convention lodge them with the Master of the High Court. The requests for service must be accompanied by two copies of the documents a translation of documents into the official language of the addressee state and undertaking to pay the costs of service.

The Master will certify that the request complies with certain preconditions (including that the application is a solicitor etc) and may return it to the relevant authorized party with a certificate for transmission to the addressee state. Differing obligations apply where the person requesting service is not a legally qualified person.

In due course, the certificate of service is given by the central authority of the addressee state. The Convention methods of service are not exclusive. An alternative method such as personal service or posts where applicable may be  permitted in most cases.

Pre-Conditions to Judgment in Default

Where proceedings are issued for service outside the jurisdiction and transmitted abroad for service, judgement in default may be entered only with the consent of the court. It must be established that the document was served by a method prescribed by the internal law of the state addressed for service of documents in domestic cases  and method provided for by the convention.

It must be established that the service was effected in sufficient time to enable the defendant to defend. The court may give leave to enter judgement in default if no certificate of service delivery has been received from central authority provided the document was transmitted by one of the methods permitted and a period of time, considered adequate by the court has elapsed, at least six months has elapsed.

In the case of service in states outside the EU which are not party to the Hague Convention the general position is that the domestic methods of service apply. An order for substituted service may be made. The court may allow service to be effected by any method which appears reasonably probable, that it will reach the defendant. If it is not served in accordance with the law of the addressee state, it may be denied recognition.

Judgement in Default

Where proceedings have issued for service under the above rules and transmitted abroad for service, judgement shall not be given unless the party seeking judgement complies with the Order 13A in addition to the requirements of this rule.  Judgement shall not be given or entered in default of appearance in any proceedings which have been served under the Order until it is established that

• the documents were served in a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within the territory, or
• the document was actually delivered to the defendant or to his residence by another method provided for by the Convention, and that in either event,delivery was effected in sufficient time to enable the defendant to defend.

Judgement in default of appearance may be entered only with leave of the Court. An application for leave to enter judgement in default shall be made by Motion on Notice and shall be supported by an affidavit verifying the claimant\’s claim for relief and the steps taken in the proceedings and supported by adequate proof of it.

Leave to Enter Judgement

Notwithstanding the above, the Court may give leave to enter judgement if no certificate of service or delivery has been received from the Central Authority, provided that the document was transmitted by one of the methods provided for by the Convention, a time period of not less than six months considered adequate by the Court has elapsed since transmission of the document and no certificate of any kind has been received and that every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

An application to set aside any judgement obtained in default or to extend the time for appealing same shall be by Motion on Notice and grounded on the affidavits of the moving party.  The Court may if satisfied that

• the application was made within a reasonable time after the defendant had knowledge of the judgement,
• the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend or knowledge of the judgement in sufficient time to appeal, as the case may be and

the defendant has disclosed a presumptive prima facie defence to the action on the merits,
set aside the judgement or extend the time for appealing, as the case may be, on such terms and conditions as appear just.

Not Exclusive

This method of service provided for in the Convention is not exclusive. Service may be permitted by post or other officers. It must be compatible with the methods of service permitted in the state concerned.

It appears the court retains power to make orders for substituted service in cases for service abroad. Any such order should be compatible with the method of service in the Hague Convention in the country in which it is sought. There must be a good reason for seeking such an order as the primary appropriate method is in accordance with the Convention.