knowledge | 21 March 2017 |
Service of Foreign Proceedings on Irish Domiciled Defendants
Irish domiciled persons and corporates are often embroiled in foreign proceedings. Consequently, lawyers outside Ireland often ask how those foreign proceedings should be served on defendants domiciled in Ireland.
The question, although straightforward in its terms, can only be partly answered – from an Irish law perspective – and lawyers seeking to serve any form of official document, whether in the context of proceedings initiated abroad or otherwise, on an Irish defendant, should remain satisfied that their own local rules on service generally, and on service outside of their home jurisdiction, are also being adhered to.
Nomination of agents
In almost every case, the simplest course will be to have the Irish defendant nominate lawyers in the foreign jurisdiction to accept service on their behalf there (where that is legally permissible) and consideration should always be given to this option.
Additionally, where a contract provides for a place and/or mode of service, service in accordance with the contract’s requirements will often be considered sufficient, irrespective of what local law provides where the litigation relates to the contract.
Service pursuant to EU Regulation or Treaty provisions
The most unimpeachable method of serving foreign proceedings on an Irish domiciled defendant is pursuant to Regulation (EC) No. 1393/20071 (the “Regulation”) when the foreign proceedings are commenced in an EU Member State (with the exception of Denmark) or pursuant to the 1965 Hague Convention2 (the “Hague Convention”) when the foreign proceedings are commenced in a non-EU Member State which is a party to the Hague Convention.3
The Regulation and the Hague Convention provide a method for exchange of “judicial and extrajudicial documents” across Contracting States. The benefit of using this route is that the process involves service by the public authorities in the foreign state and gives proof of service in the form of a certificate given by the relevant public authorities. By this process, rather than appointing private agents (such as foreign counsel) to serve, the instructing lawyers lodge the documents with the “Central Authority” (in the context of the Hague Convention) or the “Transmitting Agency” (in the context of the Regulation) in their own State, who forwards them to his or her counterpart abroad.
In Ireland, these rules are set out in detail in the Rules of the Superior Courts4 Under the Regulation, County Registrars are “Receiving Agencies”5 and under the Convention the Master of the High Court is the “Central Authority”.
Proceedings are actually served in Ireland by persons appointed by the Chief State Solicitor’s office. Service by these means is unimpeachable, but may take some time.
Other Irish law options
Neither the Regulation nor the Hague Convention excludes service by any other acceptable method (and proceedings can be served by diplomatic or consular agents, directly by post or through local agents, if these methods are acceptable both in the originating state and the state of service).
From an Irish law perspective, service of proceedings on a natural person is effected by personal service on the person and on a company by delivering the relevant documents to the company at its registered office. It is always possible to appoint local agents, such as McCann FitzGerald, so as to effect service in this manner in accordance with Irish law, and this may be desirable where service needs to be effected urgently. However, as mentioned above, any instructing lawyers would have to be satisfied that service in accordance with local Irish practice is also acceptable under rules in their home state for service of foreign defendants. For example, local rules may require service of notice of an originating document rather than the document itself and any defects in materials sent to local agents cannot be cured.
There are several methods by which one can effect service of foreign proceedings on an Irish domiciled defendant. The most robust way of doing so is via the Hague Convention or EU Regulation, as proof of service is provided from an appointed public authority. In Ireland, the Rules of the Superior Courts prescribe a framework for effecting service using these instruments.
However, it is also important to bear in mind that if practice in Ireland accords with rules relating to service out of the jurisdiction in the forum of the substantive litigation, then these international frameworks do not preclude service by other means permissible under Irish law which may make service quicker.
Also contributed by Rebecca Walsh.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.