So crowded has the general news agenda been in relation to other issues since the beginning of 2021, that it might seem hard to believe the UK really has been experiencing the implications of Brexit ‘proper’ for less than a year.
With the Brexit transition period having come to a close at the end of 2020, this has made a significant difference to the wide range of procedural rules to be followed by litigators and those drafting commercial contracts.
Just one of these key areas relates to the receipt and service of documents and the appointment of a UK process agent on the conclusion of any contracts based on UK jurisdiction, where one of the parties is based overseas so that the UK process agent can receive such documents on behalf of the party based in another territory.
Service of documents prior to Brexit
During its time as an EU member state, the UK was subject to the EC Regulation 1393/2007 on the service in EU countries of judicial and extrajudicial documents in civil or commercial matters. Also known as the Service Regulation, this regulation sought to put in place a standardised and efficient procedure for the service of documents between parties in different EU member states.
The regulation works as follows: each member state designates transmitting and receiving agencies, with the transmitting agency in one country sending the documents to the receiving agency in another state, and the receiving agency then being responsible for service. Member states are also allowed to use registered post to serve directly on a party in another member state.
How has the situation now changed in the UK?
With the aforementioned Service Regulation no longer applying to the UK since January 2021, this country has instead become subject to the Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil and commercial matters.
This instrument was already applicable to the service of documents between the UK and Denmark and the countries making up the European Free Trade Association (EFTA) – except Lichtenstein – as well as between the UK and the United States and various other countries.
Fortunately, all 27 member states of the EU are signatories to this convention. It therefore won’t be necessary to consider whether an instrument other than the convention applies, regardless of the specific EU member state that one is dealing with.
On the negative side, however, all 27 EU member states have also made reservations and declarations about the convention. This makes it necessary to take a closer look at the rules in place in the relevant country.
In practice, there might not be a great difference to the means of service under the Hague Convention, compared to the arrangements that previously applied. There is a need for contracting states to designate a central authority, to which requests for service can be addressed. This authority is then responsible for arranging for service, in line with its country’s national laws. The Hague Convention also allows for service by mail, although this isn’t permitted by some contracting countries.
What are the real-world implications of this change?
The biggest difference under the new arrangements is likely to be how much time it takes for documents to be served. While it was expected under the Service Regulation that receiving agencies would serve documents with a month of receipt, there isn’t any similar provision in the Hague Convention. This raises the prospect that in some instances there could be delays of several months.
A good practical step, then, if your organisation is entering a new contract with an EU-based counterparty, would be to include a process agent clause in the contract, setting out who has authority to accept service on behalf of the counterparty. This could be a UK process agent which in turn could greatly help minimise time and cost, in the event that proceedings later need to be issued.
Distinguishing between a process server and a process agent
A process server is instructed by one party in a contract to serve documents onto the counterparty, and the appointment of a process server is made at the time there is a need for such action. The process agent (also known as an agent for service), on the other hand, will not serve any documents on any other party. For instance, here at London Registrars, the first part of our function as process agent is the opposite: to have documents served on us, on behalf of our various appointor clients based outside of the UK, with whom we previously entered into a process agency contract.
In other words, we are effectively serving as such a client’s UK office in order to receive service of documents which, once they have been served on us, we will simply forward to our client to complete the second part of our function as their UK process agent.
For us to accept service of any documents, there must be a current process agency agreement in place between ourselves and the appointor. Any other documents outside such an arrangement would have no relevance to us or our function as a process agent.
Would you like to learn more about our cost-effective process agent service if you are an overseas firm dealing with UK-based suppliers or tenders? If so, please do not hesitate to reach out to the London Registrars team for further advice, guidance and information.