YOU’VE BEEN SERVED!


By McDowell Purcell \ In News

Having to serve judicial proceedings or documents on parties residing outside of the State can appear a convoluted affair, however the process is quite simple provided the correct sequence of steps are followed. This is the first part of a practical guide to service of judicial documents outside of Ireland.


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Part 1 will focus on serving judicial and extrajudicial documents on persons residing within the EU in accordance with Regulation (EC) 1393/2007 (the “Service Regulation”). Part 2 will look at serving documents on persons residing outside of the EU.

Service within the EU

The Service Regulation applies between all member states of the EU, including Denmark. It improves and expedites the transmission of judicial and extrajudicial documents in civil or commercial matters between the member states.

Each member state is required to nominate a designated “Transmitting Agency” and a “Receiving Agency”.

Transmitting Agencies are responsible for the transmission of judicial or extrajudicial documents to be served. Receiving Agencies are competent for receipt of such documents from the Transmitting Agencies.

In Ireland, the Transmitting Agencies are the 26 County Registrars, assigned to the Circuit Court offices in each county. The Receiving Agencies in Ireland are also the County Registrars.

Each member state must also designate a Central Body to supply information to the Transmitting Agencies and seek solutions to any difficulties which may arise during transmission of documents for service.  In Ireland, the designated Central Body is the Master of the High Court.

The Service Regulation establishes a main mode of transmission and offers alternative modes of transmission of judicial documents, including:

  • transmission by consular or diplomatic channels;
  • service by postal services; and
  • and direct service between competent authorities.

Transmission of Documents

Before commencing the process for service the current address of the person to be served should be established to ensure that such person is not only residing outside of Ireland but also within the EU.

It is also important to confirm the citizenship of the person (the “Addressee”). This is of particular importance in relation to judgment proceedings. For example, if the Addressee is not an Irish citizen or if citizenship cannot be confirmed, it will be necessary to issue a notice of the summons to be served.

Thereafter, the serving party must lodge an application with the relevant Transmitting Agency (i.e. County Registrar) by;

  • completing the requisite service documents;
  • identifying the correct Receiving Agency; and
  • providing an undertaking for the costs of service.

The document should also be in a language the Addressee understands otherwise he/she may refuse service.

If the application is in order, the Transmitting Agency will communicate the service request to the Receiving Agency having territorial jurisdiction in that member state.

The Receiving Agency

The Receiving Agency must take all necessary steps to effect the service of the document(s) within one month of receipt but in default, will continue to take steps to effect the service.

When the documents have been successfully served, the Receiving Agency will forward a Certificate of Service to the Transmitting Agency.

If the Receiving Agency has been unable to effect service of the documents, a Certificate of Unsuccessful Service will be returned explaining the reasons why the document(s) could not be served.

Default of Appearance

Judgment may be granted where the Addressee/defendant has failed to enter an appearance to proceedings served.

An Irish court may also grant judgment in default in the absence of a Certificate of Service provided additional conditions are met. However, where judgment in default is granted a defendant may be permitted to appeal this judgment even after the appeal period expires, if they can show that through no fault of their own they did not know about the service of the documents in sufficient time to defend the proceedings.

Conclusion

In general, the Service Regulation operates well and certainly simplifies the process by which a document can be served abroad. It has increased legal certainty in respect of service, as well as speed and efficiency in transmission between member states. In practice however it can take a number of months to complete the process. While the regulation has substantially reduced delays in respect of service, it’s important that care is taken in preparing any application for service abroad as queries raised by the agencies will unduly prolong the process.

Authors: Susie Higgins and Maria Curran 

Please note that this article is for information purposes only and does not constitute legal advice. Specific advice should always be taken in given situations.

Should you have any query in relation to this article or a related legal issue, please contact Susie Higgins:  

Susie Higgins Web V2Susie Higgins – Partner 

E: shiggins@mcdowellpurcell.ie / DDI: 01 8280650