Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Case of the Day: St. Ventures v. KBA Assets & Acquisitions

The case of the day is St. Ventures, LLC v. KBA Assets & Acquisitions, LLC (E.D. Cal. 2013). St. Ventures sued KBA, Ben Fenfield, Asset Placement Ltd., Susan Gillis, Paul Windwood, and Bank of America, claiming that “the defendants obtained a bond owned by St. Ventures through fraudulent means.” Asset Placement Ltd. was a UK company, and St. Ventures served the summons and complaint using a private process server, who delivered the papers to APL’s registered agent. APL moved to dismiss for insufficient service of process.

The judge denied the motion. Service in the UK is permissible under Article 10(c) of the Convention, which provides that the Convention does not interfere with “the freedom of 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.”

The judge’s discussion could have been more fulsome. Ordinarily, in my experience anyway, service under Article 10(c) in England is generally handled by a solicitor. The UK’s declarations concerning the Convention make it clear that service by solicitor is permissible. It is not clear from the return of service or from the judge’s decision whether the process server was a solicitor or not. The judge simply says that he was a “competent person of the State of destination” because he was over 21 years of age and was hired by a process-serving firm. It’s not clear to me that this is correct: under what provision of the applicable UK or English law is a private process server permitted to serve case-initiating documents? I welcome the comments of UK readers on this question.

Ted Folkman
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2 responses to “Case of the Day: St. Ventures v. KBA Assets & Acquisitions”

  1. P Smith

    The case-initiating document in England and Wales is the “claim form”. Service of a claim form within England and Wales is governed by Section II of Part 6 of the Civil Procedure Rules (CPR 6.3 to 6.19). Ordinarily the court will serve the claim form, unless a rule or practice direction requires the claimant to serve it or the claimant wishes to serve it (CPR 6.4(1)).

    There is no restriction on who can actually effect service of a claim form on the claimant’s behalf and it is common practice for solicitors themselves to instruct process servers (when they don’t opt to serve by first class post, which is the court’s preferred method).

    It is probably best practice for foreign interested persons to instruct a solicitor to arrange service, but to hold that Article 10(c) does not permit a foreign interested person to instruct a process server directly is to be absurdly technical. The 1980 letter clarifying the UK’s declarations on Article 10(c) in fact indicates that “solicitor” is merely an example of a competent person.

    Here service appears to have been sufficient under English law: a company may be served by leaving documents at its registered office (CPR 6.3(2)(b), Companies Act 2006 s. 1139(1)).

    Reply
    1. Ted Folkman

      Thanks, P. Smith!

      Reply

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