The case of the day is Baskett v. Autonomous Research LLP (S.D.N.Y. 2018). Erin Baskett sued Autonomous Research LLP, an English firm, for employment discrimination and retaliation under New York and federal law. She served process in England by private process server (not a solicitor). Autonomous Research moved to dismiss for insufficient service of process.
The UK is a party to the Hague Service Convention, which is exclusive, and therefore service must be by a method that the Convention permits. Provided the state of destination doesn’t object, the Convention permits “any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,” Art. 10(c). The UK’s objection 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.
But a later letter from the Foreign and Commonwealth Office says:
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.
The court, erroneously I think, held that service by a private process server was proper. It noted the UK’s statement, at the 2003 Special Commission, confirming “its preference for the use of direct service through English solicitors on residents of England and Wales.” The court reads this to mean that there is no rule requiring a solicitor, just a preference. But I think the court is misconstruing the letter. The UK’s position is that it prefers foreign parties to serve process by solicitor rather than by the central authority. This is why the reference is to a preference for direct service rather than just a preference for solicitors. It’s true that the Foreign Office’s letter says that solicitors are just examples of a competent person. But England has no profession of huissiers. I don’t know of any reason to think that a private process server is a competent person under English law.
Update: Alert reader and fellow blogger Aaron Lukken reminded me that in a comment to a post from October 2016, an English solicitor stated that the Special Master had expressly taken the view that only solicitors are competent persons within the meaning of Article 10(c). This reinforces the basic take in this post.