The Gazette 1996

Serving of judicial documents abroad

by T P Kennedy*

The Hague convention of 15 November

1965 on the

Serx'ice Abroad of Judicial

and Extrajudicial Documents in Civil

and Commercial Matters'

came into

force in Ireland on 4 June 1994. This

convention was implemented by two

statutory instruments which amended

the

Rules of the Superior Courts

and

the

District Court Rules\

The purpose of the convention is to

simplify the serving of judicial

documents of one country in another. It

sets out procedures to ensure proper

service and that proof of service is

provided.

The convention requires each of the

contracting states to appoint a central

authority to receive requests for service

from other contracting states

. In

Ireland, the Master of the High Court

has been designated to fill this role. In

the United Kingdom, the Foreign

Secretary and the Senior Master of the

Supreme Court fill this role for England,

the Crown Agent for Scotland and the

Registrar of the Supreme Court for

Northern Ireland.

Scope of the convention

The convention applies only in civil and

commercial matters. The parties to this

convention include all the members of

the European Union (except Austria),

Switzerland, the Czech Republic,

Slovakia, Norway, Turkey, Cyprus, the

USA, Canada, Japan, Israel, Egypt,

Pakistan, Botswana, Malawi and

Barbados'.

The convention applies to judicial and

extrajudicial documents

. Order 11(B)(2)

applies service under the convention to

the service of any summons, notice,

document, citation, petition, affidavit,

pleading or any form issued pursuant to

the

Rules of the Superior Courts

lodged for service with a request to the

central authority for service under the

convention.

TP Kennedy

Extrajudicial documents are documents

that require some form of proper service

but are not connected with legal actions.

They include notices to quit, protests in

relation to bills of exchange, demands

for payment and certain adoption

consents.

Foreign judicial documents in Ireland

Service of foreign judicial documents

can be effected in Ireland through the

Master of the High Court, by a solicitor

or by post.

Master of the High Court.

In I r e l a n d 's

instrument of ratification, the Master of

the High Court was designated as the

central authority to receive requests for

service from other contracting states. In

this capacity the Master of the High

Court will ensure that the document is

properly served. When seeking to effect

service using the central authority, it is

necessary to lodge with the Master a

request in the form set out in the annex

to the new rules together with the

required proofs

. The document to be

served should be translated into English

or Irish. An undertaking must be given

to reimburse the costs of service. The

applicant may request a particular

method of service. This is to be effected

unless the method requested is

incompatible with Irish law or the Irish

courts' practices and procedures. If the

requested method of service is so

incompatible, the document will be

served by personal service.

Where service has not been effected, the

Master may, on an application from the

State Solicitor, make an order for

substituted service

. Where service

cannot be effected, the Master may

return the request for service, setting

out the reasons why service has not

been effected.

The Master can refuse to comply with a

request for service only if he deems that

the request would infringe the

sovereignty or security of the State. It is

difficult to envisage many refusals on

these grounds. The Master cannot refuse

service on the basis of want of

jurisdiction in the requesting state.

A solicitor.

A solicitor is also a

competent person for effecting service

in accordance with the convention. Any

person in another contracting state can

instruct an Irish solicitor to effect

service. Service of the document by the

solicitor will accord with the provisions

of the convention.

Postal service.

Postal service is also a

valid means of service under the

convention. If a foreign state allows

such service and a party in that state

seeks to effect postal service in Ireland,

this is permitted by the convention. This

is the case even where a similar

document could not be legally served by

post in Ireland.

When a foreign judicial document is

served in Ireland, the Master will

complete a certificate that the

convention has been complied with. The

convention sets out a model form

certificate. The certificate states that the

document has been served and provides

the method, place and date of service

and the person to whom the document

was delivered. Where the document was

not served, the certificate is to set out

the reasons why.