knowledge 12 April 2018 |

Pleading and Service Within the EU – Care is Required

Failure to effect proper service

The defendant based his service arguments around Article 14 of the Service Regulation.² This states: 

“Each Member State³ shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent.” 

The plaintiff’s solicitors had served the originating summons on the defendant’s lawyers by registered post. However, the defendant argued that he was not properly served as Article 14 did not give individuals the right to serve documents by registered post. Instead, this was confined to the transmitting agencies of the Member States. Binchy J agreed. He noted that this interpretation was also consistent with the way the Service Regulation had been interpreted in England. There, documents were served through the Aldwych post-box system, whereby a plaintiff made an application for leave to serve the proceedings by means of registered post, and having obtained that leave, did so on behalf of the English courts. To the extent that Order 11D, r4(1) RSC suggested otherwise, it was based on a mistaken interpretation of Article 14.

A further difficulty arose as the plaintiff had served the defendant’s lawyers who had no authority to accept service. The defendant’s lawyers were served apparently because the plaintiff had no other address for the defendant.  Binchy J pointed out that the Service Regulation itself⁴ states that it does not apply where the address of the person to be served is not known and therefore the plaintiff was not entitled to rely on the Service Regulation. Moreover, the Service Regulation made no provision for service on an authorised agent of a party. The defendant’s lawyers were specified as the address for the defendant in a Notice relating to separate proceedings in the Netherlands but Binchy J stated it could not be inferred from the Notice that the defendant was authorising his lawyers to accept service of any other legal proceedings.  In the absence of a clear authority from his lawyers regarding acceptance of service of these proceedings, if the plaintiff knew the defendant’s address (and it appears he did not), he should have followed the procedures set out in the Service Regulation or the relevant Irish court rules. If he did not know the address of the defendant he should have made an application to court for an order for service outside the jurisdiction before the issue of proceedings. 

Binchy J noted that generally when a court is satisfied that service has been effected on a party, deficiencies in formal procedures as to service may be overlooked in appropriate cases, and service deemed good and that while in these proceedings there had been an irregularity in service, the court, in deciding whether to set aside the judgment on this ground, was entitled to take into account that the defendant had at all times been aware of the proceedings.

These were not the only service irregularities. As the defendant was not an Irish citizen, a notice of the originating summons rather than the summons itself should have been served and Binchy J referred to decisions setting aside service where this was not complied with. Binchy J noted that the plaintiff had purported to comply with this rule by serving a draft summons in advance of serving the summons and that the court rules did not set out any particular form of notice of summons. The draft served here had the practical effect of giving the defendant notice of the proceedings. He concluded that this irregularity could not of itself operate so as to have the judgment set aside. 

Finally, the proceedings were served during the long vacation, then impermissible without the consent of the court, and the motion for judgment was issued while the defendant still had time to enter an appearance under the rules. 

Irregularities in pleading

The endorsement on the summons under the Brussels Regulation⁵ setting out the basis of the Irish court’s jurisdiction to hear the case was incorrect.

The plaintiff had also not complied with the Defamation Act 2009 by failing to swear affidavits of verification in respect of matters of fact referred to in the summons and statement of claim.

Defendant delay

Binchy J concluded that there were irregularities in the procedure leading up to the granting of judgment here and that the defendant had a good prospect of success in defending the proceedings if they went to trial. In the ordinary course, that would be the end of the matter and judgment would be set aside. However, there was also an obligation to bring an application to set aside a judgment within a reasonable period which was not done in this case and this delay caused Binchy J to hesitate to grant the relief. Still, the court had a wide discretion and would seek to balance the interests of the parties in deciding whether or not the balance of justice favoured setting aside the judgment. 

Decision

Here the balance of justice favoured setting the judgment aside on terms. The defendant should pay the plaintiff’s costs to date. The plaintiff was entitled to amend the proceedings to correct the deficiencies identified in this judgment. The defendant would not be entitled in his defence to rely on the failure to serve a notice of summons. The plaintiff should swear an affidavit of verification.  

Comment 

This judgment illustrates the need for prospective litigants to be fully conversant with the rules surrounding pleading and service in an EU context as errors can prove fatal. Pending clarification by the rules committee, parties should strongly consider effecting service by registered post through the transmitting agency in Ireland, being the offices of the appropriate County Registrar (although given Binchy J held the Service Regulation did not apply his comments in respect of Article 14 are obiter).

However, as the plaintiff was ultimately entitled to amend the proceedings to correct the deficiencies in service and pleading, the decision confirms that challenging such deficiencies is unlikely to permanently dispose of proceedings but rather result in re-service of the proceedings and therefore such challenges may be futile at a pre-judgment stage.