Health Science Distributors Co. v. Usher-Sparks Revisited
Posted on March 26, 2012
Today we revisit the case of the day from October 28, 2011, Health Science Distributors Co. v. Usher-Sparks (M.D. Fla. 2012). Last time around, the judge held that Health Science had not shown that it had made adequate service of process on the individual defendants, Robert Usher-Sparks and Trevor Taylor, on on the institutional defendants, Wellsprings Trading, Ltd., Wellsprings Ltd., and Sarati International, Inc. Health Science gave service of process another try, this time with some more success as to the individuals, but not as to Wellsprings.
Health Science hired a process server to personally serve the documents on Usher-Sparks and Taylor in England (not in Guernsey, which raised issues in the prior post). The judge correctly held that such service is valid under Article 10(c) of the Convention, which permits service “directly through the judicial officers, officials or other competent persons of the State of destination”, in the absence of an objection from the destination state. The twist in the case is that service was effected by private process servers rather than by solicitors (it is well-established that solicitors may serve process in foreign cases, and in fact the UK central authority has indicated a preference for service by solicitors rather than via the central authority mechanism), but Health Science offered evidence tending to prove that such service was permissible under English law.
Health Science again tried to serve Wellsprings in Guernsey by leaving them at Wellsprings’s corporate address. The judge rejected this service. I am not knowledgeable about the law of Guernsey by any stretch, but
Rule 2 Rule 3 of the Royal Court Civil Rules (2007), which I cited in the comments in the earlier post, seems clearly to require that service be made by the sergeant except in limited circumstances. Therefore, service was improper under Article 19 of the Convention, which permits service by other means “to the extent that the internal law of a contracting State permits methods of transmission, other than those provided for in the preceding articles, of documents coming from abroad, for service within its territory.”
I do have to wonder why Health Science didn’t make use of the central authority mechanism in Guernsey. In my experience the UK central authority gets things done without much delay, and it seems to me appropriate to look to the central authority particularly in jurisdictions like Guernsey, whose law is less familiar to US lawyers than, say, England and Wales.