It has been widely noted that a ‘no deal’ Brexit has the potential to have a significant effect on cross-border civil and commercial litigation. In that scenario the UK will no longer be a party to a number of EU instruments which have long guaranteed judicial co-operation amongst Member States.
The Service Regulation
EU Regulation 1393/2007 (the “Service Regulation”) is an example of one such EU instrument which at present provides an unimpeachable method of (a) serving foreign proceedings on an Irish domiciled defendant when the foreign proceedings are commenced in an EU Member State; and (b) serving Irish proceedings on an EU domiciled defendant when proceedings are commenced in Ireland.
The benefit of using this method of service is that the process involves service by public authorities and gives proof of service in the form of a certificate given by the relevant public authority. By this process, rather than appointing private agents (such as foreign counsel) to serve the documents, the instructing lawyers lodge the relevant documents with the “Transmitting Agency” who will be responsible for transmission of the documents to be served in another Member State. In Ireland, the rules on service are set out in detail in the Rules of the Superior Courts and County Registrars have been designated as “Transmitting Agencies”. 1
What will a ‘No Deal’ mean for the Service Regulation
In the event of a ‘no deal’ Brexit, the UK will no longer remain party to the Service Regulation. This was made clear by the publication, in late 2018, by the UK government of the “Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018” which provide for the revocation of the Service Regulation in the event that a deal is not reached.
Importantly, the UK will however remain party to the 1965 Hague Convention (the “Hague Convention”) which governs the service of judicial and extra-judicial documents in non-EU Member States. Broadly speaking, the Hague Convention provides a framework similar to that set out in the Service Regulation such that relevant judicial and extra-judicial documents may be lodged with the “Central Authority”, rather than the “Transmitting Agency”. In Ireland, the Master of the High Court is the Central Authority. 2
A Shifting Landscape
The UK was a party to the Hague Convention prior to the entry into force of the Service Regulation and that position has not changed. In the event of a ‘no deal’ scenario, the UK looks set to rely on the pre-existing Hague Convention to govern their law relating to the service of proceedings. This reliance on the legal architecture which pre-dates the EU legal framework can also be seen in other areas. For example, in the event of a ‘no deal’ Brexit, Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters will no longer apply in the UK, leaving the Irish courts to rely on the Foreign Tribunals Evidence Act 1856 in respect of proceedings involving the UK, until such time as new legislation governing those matters is agreed.
However, when considering issues of service specifically, whether serving Irish proceedings on a UK domiciled defendant or whether serving UK proceedings on an Irish domiciled defendant, it will be necessary to consider the Hague Convention, rather than the Service Regulation, should a ‘no deal’ Brexit come to pass.