Health Science Distributors Co. v. Usher-Sparks Revisited

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.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

2 thoughts on “Health Science Distributors Co. v. Usher-Sparks Revisited

  1. The relevant rule for service on bodies corporate is Rule 3, but again it requires the Sergeant to serve the documents.

    Section 2(1) of the Service of Process and Taking of Evidence (Guernsey) Law, 1957 provides:

    “It shall be lawful for any person to serve on any other person within an Island any process or citation in any civil or commercial matter summoning or citing that other person to appear before a court or tribunal of any country outside that Island, whether within or without Her Majesty’s dominions.”

    I think this means that any interested person can ask the Sergeant to effect service of foreign process without the foreign court making a formal request. Thus “give the documents to the Sergeant” is a method of service available under Article 19, albeit not one which differs in any meaningful way from Article 10(c).

    On the other hand, if it means that anyone can do in relation to foreign process what only the Sergeant is permitted to do in relation to Guernsey process (unlikely, because it raises the question of why only the Sergeant should be permitted to serve Guernsey process if anyone may serve foreign process) then in this case service may have been proper.

    For completeness I should mention that section 2(2)(b) of the 1957 Law confers a power to make rules of court “for regulating the service in an Island of any process or citation in any civil or commercial matter pending before a court or tribunal of a foreign country … for giving effect to any agreement made before, on or after the commencement of this Law between the United Kingdom and that foreign country in the matter of service of any such process or citation as aforesaid”, but if such rules have been made to give effect to the Hague Convention then I can’t find them.

    1. Thank you, P Smith. I hereby appoint you to the honorary rank of Letters Blogatory resident Guernsey expert! I especially appreciate the pointer to the 1957 statute.

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