Case of the Day: Companion Property & Casualty v. US Bank
Posted on February 25, 2016
The case of the day is Companion Property & Casualty Insurance Co. v. US Bank N.A. (D.S.C. 2016). The document the court issued and that I’m highlighting today isn’t a decision: it’s a request for service under the Hague Service Convention directed to the Cayman Islands central authority.
The request is in the form of a letter rogatory. It begins: “The United States District Court for the District of South Carolina presents its compliments to the appropriate judicial authority of the Cayman Islands and respectfully requests international judicial assistance to effect service of a Summons and a Third Party Complaint …” It goes on to give the particulars of the case and the parties, just as a letter rogatory should. And it is signed by the judge.
Even though it’s not required, there’s nothing wrong with a request for service under the Convention being made by the judge rather than by the party seeking service. A judge is competent to act as the applicant or the forwarding authority. Indeed, my own practice is generally to ask the clerk to sign and seal the request, because there are some central authorities that don’t like to execute requests signed only by the plaintiff’s lawyer.
However, it’s not just a bad idea to make a request in the form of a letter rogatory. As the Conclusions and Recommendations of the 2014 Special Commission recall, the use of the model request form is mandatory. The request form allows the applicant to specify the prong of Article 5 under which the central authority is to make service, which today’s letter rogatory doesn’t do. In short, the court probably has increased the chance of service problems by failing to make the request for service in the proper form.
It’s not really clear why the court proceeded this way. The third-party plaintiff put Order 69 of the Cayman Islands Grand Court Rules, which governs the procedure in foreign service cases. But nothing in Order 69 suggests doing anything other than what the Convention requires, namely, transmitting the request using the standard request form.