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When effecting service of process in the UK pursuant to Article 10(b), are plaintiffs required to use a UK solicitor in order to serve defendants?

What the Official Documents State

Under the Hague Service Convention, United States plaintiffs may serve United Kingdom defendants via a UK solicitor.[1]

Article 10(b) of the Convention states:

“Provided the State of destination does not object, the present Convention shall not interfere with… 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 of the State of destination.”[2]

Further, Article 10(c) allows:

“the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” Id.

In its declaration to Article 10 of the Convention, the UK qualified service as follows: “With reference to the provisions of paragraphs (b) and (c) of Article 10 of the Convention, documents for service through official channels will be accepted in the United Kingdom only by the central or additional authorities and only from judicial, consular or diplomatic officers of other Contracting States.[3]

Does this mean that when service in the UK is effected pursuant to Article 10(b), a UK solicitor must personally serve the defendant?

In Thomas & Thomas Rodmakers, Inc. v. Sharpe’s, WL 1057382, at *5 (S.D. Ohio Apr. 5, 2007), the court concluded that “the UK has made it ‘evident’ that, pursuant to the Hague Convention, ‘personal service of foreign process in the United Kingdom [under Article 10(c)] must be accomplished by a solicitor.’”[4]

Accordingly, based on the Thomas opinion, some defense attorneys hold that without a demonstration that a UK agent “is a solicitor admitted to practice in the United Kingdom,” Article 10(b) in the UK is not proper.[5] Indeed, Legal Language Services has seen motions to quash Article 10(b) service in the UK based upon this notion that the solicitor must personally deliver the documents to be served to the defendant.

LLS is pleased to brief the September 2018 case of Baskett v. Autonomous  Research LLP,[6] which correctly construes the Thomas opinion.

How to Correctly Interpret the Thomas Opinion

In Baskett, the plaintiff asserted employment discrimination and retaliation claims arising under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e, et seq., the Equal Pay Act of 1963, 29 U.S.C. § 206(d), the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq., the New York City Human Rights Law, N.Y. Admin. Code §§ 8-101, et seq., the New York Equal Pay Law, N.Y. Labor Law § 194, and the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. The defendants filed to have the case dismissed on several grounds; including that service of process was not proper.[7]

Interestingly, the Baskett opinion does not provide any details regarding how service was actually effected.  All that is clear from this opinion is that a solicitor did not personally serve the defendants; and that service was effected by an agent.[8]

The Baskett court’s opinion turns on a reexamination of the Thomas court’s logic. The Baskett court observed that in reaching its decision, the Thomas court “relied on a letter to the Permanent Bureau of the Hague Conference on International Private Law, dated September 11, 1980, from the UK Foreign and Commonwealth Office, in which the question arose whether ‘the United Kingdom still intended to allow direct service on its territory by a solicitor admitted to practice in the jurisdiction.’[9]

However, the Foreign and Commonwealth Office responded to this letter by stating:

Thank you for your letter of 31 July in which you ask for assistance in the interpretation of the declaration made by the United Kingdom on 17 November 1967 in relation to Article 10(c) of the Convention. I am happy to confirm that our declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom directly through a competent person other than a judicial officer or official, e.g., a solicitor.[10]

In holding that the UK’s declarations to the Hague Convention do not require a solicitor to actually effect service upon UK defendants, the Baskett court stated that it:

interprets the authorities cited by the court in Thomas as indicating that the United Kingdom prefers that a solicitor be used for direct service on their residents, but that there is no explicit requirement that a solicitor be used.

Indeed, other courts have reached a similar conclusion.

See Sparrow Capital, LLC v. Katcharian, No. 11-cv-34-WOB, 2013 WL 12176855, at *9 (E.D. Ky. Sept. 13, 2013) (finding that the September 1980 letter cited by the Thomas court provides a non-exhaustive list of competent persons other than a judicial officer and that [e].g. typically means for example, and this choice of wording implies that solicitors are not the only category of competent persons), report and recommendation adopted, 2013 WL 12177260 (E.D. Ky. Sept. 26, 2013).

See also Selmani v. Kline, No. 2:16-cv-00264 (WJM), 2016 WL 5339574, at *2 (D.N.J. Sept. 22, 2016) (The UK has explained that it has a preference for the use of direct service through English solicitors on residents of England and Wales, but it has never indicated that this is the only acceptable method of service. (internal quotation marks omitted)); Health Sci. Distributors, Co. v. Usher-Sparks, No. 6:10-CV-1797-Orl-31KRS, 2012 WL 601148, at *3 (M.D. Fla. Jan. 20, 2012) (Because service of process by a process server is a method permitted by English law, it is valid under Article 10(c).), report and recommendation adopted, 2012 WL 601204 (M.D. Fla. Feb. 23, 2012); Richardson v. Att’y Gen. of the British Virgin Is., No. 3:08-cv-144, 2010 WL 2949438, at *1 (D.V.I. July 23, 2010) (finding service by process server proper under Hague Convention).

Effecting Service of Process in the UK

Article 10(b) service in the UK is popular. In our experience over the last few years, clients have selected solicitor service over central authority service (Article 5(a) service) by a ratio of approximately 2:1. This reflects the fact that solicitor service in the UK is effected in about half the time that it takes central authority to effect service.

Given the popularity of UK solicitor service, there can be little question that going forward many opposing counsels will file Thomas motions for dismissal due to lack of proper service. Accordingly, Baskett is a handy case for filing a brief against a Thomas motion for dismissal.

Do you require assistance serving process in the UK? Contact our professional team of lawyers and language specialists today.

Call us at 1-800-755-5775 or simply fill out our free quote form.

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[1] The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Article 10(b).
[2] https://www.hcch.net/en/instruments/conventions/full-text/?cid=17.
[3] https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=427&disp=resdn
[4] Baskett v. Autonomous  Research LLP, No. 17-CV-9237 (VSB)(SD NY September 28, 2018). Throughout this opinion, the court refers to UK solicitor service as being authorized by Article 10(c) of the Convention. This appears to be a typo because Article 10(c) concerns right of interested parties to effect service. Accordingly, in this post I have changed any quotes involving Article 10(c) in the Baskett opinion to read as “Article 10(b).”
[5] Id. quoting Thomas, 2007 WL 1057382, at *5.
[6] Id.
[7] FRCP 12(b)(5).
[8] It is not clear from this opinion whether the agent was in the employ of a solicitor.
[9] Baskett, supra note 4 citing 2007 WL 1057382, at *5 (quoting Practical Handbook to the Operation of the Hague Service Convention 62 (2006)).
[10] Id. (citing Declarations by the United Kingdom on the Hague Convention, available at http://www.hcch.net/index_en.php?act=status.comment&csid=427&disp=resdn (last visited September 20, 2018)).

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