Update: Please consult my next post, which includes information about other methods of service the plaintiff attempted that were not addressed in the affidavit discussed in this post.
I’ve previously written about efforts by the lawyers for Virginia Giuffre to take evidence from the Duke of York. I did poke some fun at Ms. Giuffre’s lawyers in the prior posts. Here, for example, is a post on the letterhead Ms. Giuffre’s Palm Beach lawyers used when they first sought Prince Andrew’s agreement to sit for an interview. The letter, predictably, accomplished nothing. And here is a post about the lawyers’ additional futile attempts. But Ms. Giuffre is now represented by new counsel, Boies Schiller Flexner LLP, and she has brought a lawsuit against Prince Andrew in the Southern District of New York. Let’s take a look at her attempt at service of process.
First, a note on the form of the process server’s affidavit itself. Of course, an unsworn declaration would have done the trick and saved some time and money. But having decided to submit an actual affidavit, sworn before a notary, the plaintiff’s lawyers quite correctly obtained an apostille certifying the signature and seal of the notary. Well done.
According to the affidavit, the process server, after a long rigmarole at the Royal Lodge in Windsor, speaking with metropolitan police officers, security personnel, and other factotums, left the summons and complaint with a police officer, who said the papers would be given to the “legal team.”
Now, I am not an English lawyer, and I will not comment on whether the service comported with English law. But let’s ask whether the service comported with US law, which of course includes the Hague Service Convention. As longtime readers can recite by heart, under the Supreme Court’s Volkswagen precedent, when the Convention applies, the method of service used must be authorized, or at least permitted, by the Convention.
There is no indication in the affidavit that the plaintiffs’ lawyers sent a request for service to the UK central authority. If that’s what happened, and if the central authority arranged for the process server to serve the process, then the service was, from a US perspective, prima facie valid, and maybe even conclusively valid. But if the plaintiff’s lawyers had used the central authority, they would have provided an Article 6 certificate rather than the process server’s affidavit as proof of service, so I suspect this isn’t what happened. So let’s assume that the central authority wasn’t involved.
The next question is whether the service was permitted under Article 10(c) of the Convention, which provides that “any person interested in a judicial proceeding” (e.g., a party) can serve process “directly through the judicial officers, officials or other competent persons of the State of destination,” unless the state of destination has objected to such service. The UK’s declaration reads:
With reference to the provisions of paragraphs (b) and (c) of Article 10 of the Convention, documents for service through official channels will be accepted in the United Kingdom only by the central or additional authorities and only from judicial, consular or diplomatic officers of other Contracting States
That would make it seem, on its face, as though the use of a private process server in the UK, without going through the central authority or at least an “additional authority,” is problematic. But the UK later clarified its position:
I am happy to confirm that our declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom “directly” through a competent person other than a judicial officer or official, e.g., a solicitor.
So the real question is whether the plaintiff’s lawyers arranged the service through an English solicitor. The process server’s affidavit states that he was instructed, but not by whom. So: if he was instructed by a solicitor, then there is no problem under the Convention. If the US lawyers hired him directly, then there is a problem under the Convention.
Article 10 of the Convention is merely permissive, as we know from the Water Splash case. So it’s not enough to say that the Convention permitted the service. We still have to ask whether the service was authorized by the law of the forum, in this case Rule 4(f) of the Federal Rules of Civil Procedure. Rule 4(f)(1) is out: that’s the rule that provides for use of the methods of service the Convention authorizes, namely, service via the central authority. (I should say here, for experts, that it seems to me that cases like Papir v. Wurms, which hold that Article 10 affirmatively authorizes the methods of service it describes, are not good law in light of Water Splash). Rule 4(f)(3) is out, too, as there has been no motion for leave to serve by alternate methods. So we are left with Rule 4(f)(2). Rule 4(f)(2)(B) is out, since there has been no letter of request. Rule 4(f)(2)(C)(ii) is out, since there was no attempt at service by mail. The remaining options are Rule 4(f)(2)(A), service “as prescribed by the foreign country’s law,” and Rule 4(f)(2)(C)(i), service by “delivering a copy of the summons and of the complaint to the individual personally.”
It seems that Rule 4(f)(2)(C)(i) is unlikely to carry the day, given that the papers were plainly not delivered to the Duke of York personally. And so we are left with the question whether the service comported with English law. And that, of course, is precisely the question I do not want to opine on. Interested readers can consult Part 6 of the (English) Civil Procedure Rules.
So in short, the first question I would ask is whether the US lawyers worked with an English solicitor, or whether they decided to “do it themselves.” And secondly, I would ask about whether the service complied with English law.