It seems the saga of serving Prince Andrew with process is over. A US lawyer entered an appearance for the Prince, and the judge promptly granted the plaintiff’s motion for leave to serve process on the US lawyer. As longtime readers know, this avoids any issues under the Hague Service Convention, because service on the US lawyer does not require transmission of a judicial document abroad. This is why I am puzzled that the Prince did not use the “run silent, run deep” strategy that seems most appropriate in cases where a defendant abroad wants to avoid service. Longtime devoted readers know that there is an issue lurking here, which I wrote about recently: the rule on service by alternate means, FRCP 4(f)(3), applies only when service is made outside a judicial district of the United States. If we say that the service was made in the United States, so as to avoid implicating the Service Convention, how can we also say that the service was made outside the United States, so as to bring FRCP 4(f)(3) into play? On the one hand, the judge has precedent on his side here. On the other hand, there is a textual puzzle that is difficult to unravel. In any event, it seems that the issue of service of process is now over, at least unless and until there is an issue about enforcement of an eventual judgment in the UK.
This mini-drama has been a terrific advertisement for the Service Convention. What has it shown? Even a very large and sophisticated US law firm flailed around and couldn’t quite seem to get service made cleanly and correctly in the UK, one of the easiest countries for foreign service, at least if you agree with the conclusions in my prior posts on the case (here and here). So if you aren’t really sure of yourself, what would I suggest? Use the central authority; the central authority system is designed precisely to avoid putting the burden of “figuring it out” on the plaintiff’s lawyer. It seems from news reports that the central authority was proceeding with the service, at least until the recent order authorizing service by alternate means (maybe the plaintiff will still want the central authority to serve the papers out of an abundance of caution). Or, if the central authority seems to slow and you worry, for example, that the foreign defendant might take steps to challenge the request under the Convention, hire someone like Aaron Lukken, who certainly knows more about the issue than you do.