Blog: Prince Andrew, civil litigation and cross-jurisdictional process serving
16 Sep 2021
As a US civil action against Prince Andrew gets caught up in a dispute over cross-jurisdictional process serving, Hickman & Rose partner Stefano Ruis has written a blog explaining the concept.
The ongoing legal saga of sexual assault allegations made against Prince Andrew took another twist when lawyers for the prince questioned whether US legal documents relating to a civil action against him were properly served within the English jurisdiction.
According to news reports, Prince Andrew’s lawyers have argued that proceedings were not properly served when they were handed to a police officer at the gates of the prince’s Windsor Great Park home.
That such important legal documentation was apparently served on such a high profile individual, in such a significant matter, may strike some people as an unreliably risky way to conduct legal communication. Certainly, process serving in this manner is not the normal way by which international civil litigation is conducted when it involves parties domiciled in England and Wales.
But, as the Prince Andrew case shows, it does take place. Ensuring it does so properly can prove crucial to determining in the outcome of a civil case.
Civil Procedure Rules 6.48 to 6.52 set out how documents connected to civil or commercial proceedings in foreign jurisdictions (other than within the EU) should be served in England and Wales. These rules specify that service must be effected via the UK’s “central authority”. This is the senior master at the foreign process section in the high court.
However, this CPR-endorsed method is not the only way. Article 10 of the Hague Service Convention (HSC) makes it clear that the Convention does “not interfere with the freedom” to send judicial documents by other channels such as post, through judicial officers, via officials or other competent persons in the contracting state of destination, provided the state of destination does not object.
Accordingly, it remains possible in English and Welsh law to serve legal documents on UK-based individuals using a process server.
What is a process server?
A process server is an individual who hand delivers legal documentation to the respondent in a civil legal action. Often retired police officers working as independent contractors, process servers are, in the case of any dispute, able to swear independently to a court that any document’s intended recipient did indeed receive it.
Provided it is done in accordance with normal domestic rules of service of court documents, the service of US proceedings by a UK process server on a defendant domiciled in the UK has been held to be a valid form of transmission in the US (see: Balcolm v Hiller, 46 Cal App 4th 1758 (2nd Dist, Div 4 1996) and White v Ratcliffe, 674 N E 2d 906 (Ill App Ct 1996)).
There is, however, no clear English law authority or guidance on whether service via a process server (who is instructed by a solicitor in the UK) is a valid method of service of foreign proceedings in England and Wales.
This means that, although the instruction of a process server by an English solicitor to serve US papers here appears to comply with the requirements of HSC, there remains a risk that the recipient may argue that proper service has not been effected.
The High Court intervenes
If news reports on the Prince Andrew matter are correct, the high court has, at the time of writing, agreed to serve papers on the prince on behalf of the complainant Virginia Giuffre’s legal team. The high court’s intervention effectively removes any doubt about whether or not the documents in question can be served on Prince Andrew.
Engaging the high court in this way is one of two failsafe ways for any US (or non EU) based litigant to serve papers on a UK domiciled individual. The other is to consider direct service by a UK solicitor in accordance with the decision in Tax Lease Underwriters Inc v Blackwall Green Ltd (106 FRD 595 (ED Mo 1985).