How to Serve Legal Documents and Enforce Judgments Between EU Countries

eu-transnational-litigation

Enforcement of judgments obtained in one EU country in another EU country is governed by the Brussels I regulation which superseded the Brussels Convention and the Lugano Convention.

Lugano convention

The Lugano Convention covers issues of jurisdiction where one of the countries is an EFTA (European Free Trade Association) country of which there are 3-Iceland, Switzerland and Norway.

Brussels I regulation

Brussels I regulation governs issues of jurisdiction and enforcement of judgments between countries who signed up to Brussels I. This therefore covers most EU countries.

The purpose of Brussels I was to provide uniformity as to the proper forum and jurisdiction in matters of transnational litigation.

The general rule arising from Brussels I is set out in Article 2 of the regulation which states simply that persons shall be sued in the member state in which they are domiciled.

For a business this would be where the company has it’s principal place of business.

However there are a number of exceptions to the above general rule.

Exceptions to general rule

In these exceptions to the general rule a Plaintiff may have a choice of jurisdiction in which to bring his legal proceedings.

  1. Contract- a person may be sued in the jurisdiction where the contract was to be performed.
  2. Insurance-there are special rules in relation to insurance contracts which are set out in section 3 of the regulation
  3. Tort-a person can be sued in the state where the harmful event occurred as well as his place of domicile
  4. Connected proceedings
  5. Consumer contracts-the Plaintiff can bring proceedings in his own state or in the state of the Defendant
  6. Some contracts of employment
  7. Property related proceedings-Article 22 stipulates that the proceedings be brought in the state in which the property is located.

Article 23 allows the parties to agree on which state will have jurisdiction-this is called Prorogation of Jurisdiction and this agreement should be in writing.

Service of legal proceedings under Brussels I regulation

Service of documents under Brussels I is governed in Ireland by Order 11A of the Rules of the Superior Courts and provides that legal proceedings may be issued without any need to obtain leave of the High court.

Service of documents under Lugano convention

When cases are governed by the Lugano convention the appropriate rules to follow are set out in 11B of the Rules of the Superior Courts.

Service of judicial and extrajudicial documents in member states of the EU in civil and commercial matters

SI 280 of 2009 sets out the rules and regulations in respect of service of judicial and extrajudicial documents in EU member states in Civil and Commercial cases.

Recognition and Enforcement of Judgments between EU States

The recognition and enforcement of judgments between EU member states is dealt with under the Brussels I regulation, specifically articles 30 to 56. In fact article 33 states that a judgment obtained in one EU member state will be recognised in other member states as a matter of course.

However this recognition will not be of much benefit to you if you are not able to enforce your Judgment in Ireland against the assets of an Irish debtor.

Order 42A of the Rules of the Superior Courts in Ireland sets out the procedure to have a foreign judgment enforced in Ireland and it involves an application to the Master of the High Court who is the designated authority.

To make such an application it will be necessary to swear a grounding affidavit which will exhibit the judgement which you wish to have enforced and proof that the judgment is enforceable in the state in which it was given.

This affidavit will also need to provide an address in Ireland for the service of documents on you as applicant.

If judgment was given in default of Appearance or Defence you will need to show proof of service of necessary documents on the defendant.

In addition you will need to produce an Annex V Certificate which is a certificate provided by court officials in the state in which judgment was granted and which sets out certain details concerning  the case and judgment.

Declaration of enforceability

Once the necessary documents above have been filed and exhibited the Master of the High Court will issue a Declaration of Enforceability which has the same effect as a Judgment of the High Court in Ireland.

A Notice of Enforcement is then served on the Defendant along with the order of the Master. The Master’s Order will contain a time period within which the debtor can appeal the decision, generally 1 month.

Defences to enforcement of EU judgments

Article 34 provides some defences to having a judgment from another EU state enforced in Ireland or any other state for that matter. These include:

  1. If recognition of the judgment would be contrary to public policy in the state in which application is made
  2. If the debtor was not served with documents and the judgment is in default of appearance or defence
  3. If it is irreconcilable with other judgments granted in the dispute between the parties.

Generally the most common problem is 2 above where the originating summons was not served on the defendant.
By Terry Gorry
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How to Obtain Hague Convention Service in Ireland

Do you need to serve legal proceedings in Ireland in accordance with the Hague Convention?

hague-convention-service-of-process-ireland

This piece will explain the most cost effective method of serving legal proceedings in Ireland in accordance with the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters .

It will also take a look at the common law principles and difficulties surrounding the enforcement in Ireland of judgments obtained in the United States.

Background

Ireland is one of the signatories to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

The Federal Rule of Civil Procedure 4(f) provides that service on an individual in a foreign country may be served by any internationally agreed means of service such as the methods authorized by the Hague Convention.

The Supreme Court of the United States has recognised the mandatory nature of the Hague Convention in

VOLKSWAGENWERK AKTIENGESELLSCHAFT v. SCHLUNK, 486 U.S. 694 (1988).

“We acknowledged last Term, and the Court reiterates today, ante, at 699, that the terms of the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 1969. 20 U.S. T. 361, T. I. A. S. No. 6638, are “mandatory,” not “optional” with respect to any transmission that Article 1 covers.

Article 1 of the Convention provides that the Convention “shall apply . . . where there is occasion to transmit a judicial . . . document for service abroad.” “Service” means a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action.”

Source: US Supreme Court.

You may think therefore that it is a straightforward matter to effect service on Irish citizens or residents in litigation cases as the Hague Service Convention provides for a number of methods of service including

  • Post or mail with a return receipt (however, see caveat below re service by mail)
  • Directly through the Central Authority of the country in which you wish to serve documents
  • Instructing a local solicitor in Ireland to deal with the matter of service.

However a quick look at the background of Ireland’s ratification of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matter is worthwhile and may save you a lot of money, time and heartache.

Ireland and the Hague Convention

The Hague Convention provides for a government sponsored “Central Authority” which oversees the service of legal papers from other signatory countries to the Hague Convention. In Ireland, the Central Authority is the Master of the High Court.

As the Central Authority, the Master of the High Court ensures that the document is properly served, either in accordance with domestic forms of service, or in accordance with a particular method requested by the applicant, unless the particular method is incompatible with Irish law.

Ireland ratified the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters in 1994.

However, in doing so Ireland made an objection pursuant to Article 10 and made declarations pursuant to Articles 3 and 15.

The objection Ireland made under Article 10 was to

i. the freedom under Article 10(b) of judicial officers, officials or other competent persons of the State of origin to effect service in Ireland of judicial documents directly to judicial officers,officials or other competent persons and

ii. the freedom under Article 10(c) of any person interested in a judicial proceeding to effect service in Ireland of judicial documents directly through judicial officers, officials or other competent persons.

However this objection is not intended to preclude any person in another contracting State who is interested in a judicial proceeding or his lawyer, from effecting service in Ireland directly through a solicitor in Ireland.

This objection raises two questions which have to be answered before the service of foreign process in Ireland is valid:

  1. Whether the mode of service followed is valid under the law of the State of origin and
  2. The competency of the Irish official who effects service.

Under the terms of this objection therefore there are only two officials who possess the necessary competence to effect service under the Convention in Ireland.

These are the Central Authority in Ireland (the Master of the High Court) and a solicitor in Ireland.

No one else is to validly effect service in Ireland under the terms of the Convention.

This means that although service may ultimately be valid according to the law of the State of origin, it is not good service for the purposes of the Convention.

So if you wish to ensure valid service in accordance with the Hague Convention, the use of legal services agents or town agents or law agents will not suffice and will not be good service in accordance with the Hague Convention.

This is not explicitly stated anywhere but arises by implication from Ireland’s objection to the ratification of the Hague Convention as outlined above.

Unfortunately many foreign legal firms are unaware of this limitation and make the mistake of engaging the services of a law agent of one kind or another.

This can cause serious problems because service can only be effected directly through the Central Authority or by using an Irish solicitor who will submit the documents and request form on your behalf.

(Note: in information provided by the Central Authority in Service Convention questionnaires in 2003 and/or 2008 the Irish authorities provided this information:

Forwarding authorities
(Art. 3(1)):
– the Central Authority;
– a practising Solicitor;
– a County Registrar; and
– a District Court Clerk.

Service by mail/post?

Whilst service by mail or post may appear to be the least expensive method you may run into problems in enforcing your judgment in Ireland as there is no treaty in force between the US and Ireland in relation to enforcement of judgments obtained in the US against assets in Ireland of the defendant.

US Courts are also divided as to the propriety of service by post with conflicting judgments being handed down in Florida and other states as set out in this document from the American Bar website.

In addition, you run the risk of only proving that you sent process to a particular address and not actually serve the person in question. This will no doubt lead to difficulty.

Service directly through the Central Authority?

Effecting service directly through the Central Authority of Ireland (the Master of the High Court) by sending a request for service directly to the Central Office of the High Court is problematic also because it is slow and there are only a very small number of personnel to deal with a growing number of cases and to effect service.

Service by an Irish Solicitor?

The best and most effective method if you think that ultimately you will need to enforce your Judgment against the assets of an Irish defendant is to instruct an Irish solicitor.

He/she will deal with the paperwork, liaise with Central Office and arrange service of the documents directly provided the request for service requests that the solicitor be permitted to serve on the Defendant which is common.

Once service is effected by the Irish solicitor he sends one set of papers back to the Central Office of the High Court who then certify service. It is this certificate of service which is accepted as proof of service under the Hague Convention.

In summary Ireland’s ratification of the Hague Convention was done in such a way as to leave only 2 avenues of good service in accordance with the Hague Convention open to you:

  • through the Central Authority
  • by instructing a solicitor in Ireland.

Enforcement of US Judgments in Ireland

Unlike procedures laid down under the Brussels I Regulation or Lugano Convention for the enforcement of judgments between EU member states there is no formal procedure in the Rules of the Superior Courts in Ireland for the enforcement of judgements from non EU countries such as the United States and Canada.

Strictly speaking, the procedure therefore is that if you have obtained a judgment in the United States for example, you are obliged to commence proceedings anew in Ireland under the Summary Summons procedure.

The purpose of these proceedings would be to obtain a Judgment in the Irish courts in the terms of the foreign judgment.

And the principles to be applied in granting or refusing a Judgment in Ireland to be applied by the Irish courts are the common law rules or principles.

However the Irish Courts can enforce a non EU judgment under the common law rules of enforcement. To be successful with an application for recognition of a non EU judgment the following are fundamental-

1. The judgment must be for a definite monetary sum

2. The judgment that was obtained must be conclusive and final

3. The Defendant had adequate time to defend the proceedings and must have been served with them

4. The judgment must not be irreconcilable with public policy in Ireland

5. The judgment was not obtained by deceit or fraud

6. The Court that issued the judgment must have had jurisdiction to have dealt with the dispute-it must have been a Court of Competent Jurisdiction

The Defendant could have submitted to the jurisdiction of the foreign Court as a matter of contract or by entering an Appearance to the proceedings.

The action then to enforce the US judgement is one taken at common law and the cause of action is recognition of the foreign judgment.

The question of competence of jurisdiction is an important one and it is not enough to show that the foreign Court had jurisdiction according to the conflict of jurisdiction rules in the foreign country; it must be shown that the Court was one of competent jurisdiction according to the Irish conflicts of laws rules.

Enforcing US Court Judgments in Ireland-The Common Law Principles

As there is no agreement in place between the United States and Ireland for the automatic recognition and enforcement of Judgments obtained from a court in the US in Ireland, it will be necessary to rely on common law rules.

This can pose major difficulties for holders of judgments against debtors from outside Ireland.

In fact, there is no bilateral treaty or multilateral international convention in force between the United States of America and any other country on a reciprocal recognition and enforcement of judgments.

The Irish common law rules/principles are quite restrictive and enforcing non-EU judgments in Ireland can be problematic as a consequence.

Common law principles

The common law principles that the Irish Courts will rely on are

  1. The US judgment must be for a liquidated sum, that is a definite monetary value
  2. The US judgment must be final and conclusive
  3. The US judgment must be granted in a Court of competent jurisdiction.

Number 1 above is obvious-you either have a judgment for a definite sum or not.

Likewise with number 2-the legal proceedings must have come to an end with no opportunity to appeal the judgment and the judgment must have been achieved following the correct procedures in the state in the US which granted the Judgment.

 Court of competent jurisdiction

Number 3 above can be the most problematic as a result of a case called Rainford v Newell Roberts [1962] IR 95 where a Judgment was obtained by Rainford in the UK and sought to enforce the judgment in Ireland. (This situation would not arise now as a result of both countries mutual recognition of judgments due to various EU law and international conventions but is illustrative of the common law principles involved in seeking to have the US judgment enforced here)

This problem centres primarily on the question of proper service of the proceedings on the Defendant, as accepted by Irish rules of private international law.

In Rainford v Newell-Roberts the defendant had not been in the UK when served with the legal proceedings and had therefore not submitted to the jurisdiction of the English Courts and as a consequence the Irish Courts did not allow enforcement of the Judgment.

Where the dispute or Judgment arises as a result of breach of contract and the contract provides that a foreign jurisdiction will have exclusive jurisdiction in the event of a dispute the Irish Courts would be very likely to stay any proceedings instituted in Ireland and recognise the exclusive jurisdiction clause in the contract.

Grounds on which Judgment will be refused

In addition to the above considerations and criteria the Irish Courts will refuse to grant Judgment in Ireland where

  1. The Judgment would violate Irish public policy
  2. The foreign judgment was obtained by fraud
  3. The foreign judgment is in breach of natural justice
  4. The foreign judgment cannot be reconciled with an earlier foreign judgment.

Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12

This 2012 decision of the Supreme Court in Ireland is instructive and helpful in this area.

In Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12 the Supreme Court was invited to accept the appropriate basis upon which the common law in this jurisdiction should recognise an in personam order of a foreign court. Flightlease argued that the traditional test as set out in Dicey (and in particular Rule 36) represents the current law in this jurisdiction. Swissair contended that the courts in this jurisdiction should follow the lead of Canadian courts and adopt a ‘real and substantive connection’ test.

(Read the full decision in this case here)

According to Rule 36 of Dicey if a judgment debtor was, at the time the proceedings were instituted present in a foreign country or if the judgment debtor submitted to the jurisdiction of the courts of the foreign country the Irish courts would recognise and enforce a judgment of a court of that country. (Dicey, Morris & Collins on Conflicts of Laws 14th edition (“Dicey”))

“Rule 36. Subject to rules 37 to 39, a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition in the following cases:

First case. If the judgment debtor was, at the time the proceedings were instituted, present in the foreign country.

Second case. If the judgment debtor was claimant, or counterclaimed in the proceedings in the foreign court.

Third case. If the judgment debtor, being a defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings.

Fourth case. If the judgment debtor being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings to submit to the jurisdiction of that court or of the courts of that country.”

The Supreme Court decided that to follow the lead of the Supreme Court in Canada would lead to the Supreme Court in Ireland exceeding it’s judicial function and that the correct position is as set out by Rule 36 in Dicey outlined above.

An alternative way to recover a foreign judgment against an Irish debtor is to bring bankruptcy proceedings in Ireland against the debtor with the first step being to serve a demand for payment on the debtor.

However the difficulties of starting proceedings in Ireland anew are

  1. costs and
  2. statute of limitations, that is to say, you may be out of time to commence proceedings, depending on the reason for the litigation.

Conclusion

There are 2 main conclusions to be drawn from the above:

1.      the most effective method of service of legal proceedings on an Irish defendant in accordance with the Hague Convention is by instructing an Irish solicitor to do so on your behalf;

2.      enforcing a judgment obtained in the United States in Ireland is problematic and uncertain and may require the issuing of fresh proceedings in Ireland.

If you have any questions or need a quotation for service of process in Ireland, please don’t hesitate to contact me.
By Terry Gorry
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