The case of the day is Selmani v. Glaxo Smith Kline (D.N.J. 2016). Alexandre Selmani sued Liam Kennedy and others, alleging he was fired in retaliation for whistleblowing. Kennedy, who lived in the UK, was served with process by a process server working on behalf of a solicitor. Kennedy moved to dismiss for insufficient service of process.
Kennedy’s argument was that only solicitors were competent persons for purposes of Article 10(c) of the Hague Service Convention. The court rejected this argument, noting that under the English Civil Practice Rules 6.49(c), a “process server” is defined as a “process server appointed by the Lord Chancellor to serve documents” or “the process server’s agent.” I am not sure that this citation is apposite, and I invite comment from English lawyers. The reason for my uncertainty is that it the rule seems to refer only to service via the English central authority.
Case of the Day: Selmani v. Glaxo Smith Kline
2 responses to “Case of the Day: Selmani v. Glaxo Smith Kline”
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I am the English Solicitor who arranged for service of the District Court Summons, etc, upon Mr Kennedy in the Selmani v Glaxo Smith Kline (sic) action, and note the decision of William J Martini USDJ that, inter alia, service by the method employed (service in England by a process server instructed by me for the purpose) was effective and in accordance with FRCP 4(f).
For background, since 2000 I have been involved in serving hundreds upon hundreds of US process in England & Wales in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
There are two alternative methods of service that we adopt. The first is service in accordance with article 5 b) via, and by long-standing agreement with, the UK Central Authority (“CA”), namely the Senior Master, Queen’s Bench Division, High Court of Justice (presently Senior Master Barbara Fontaine). The second is service in accordance with article 10 b) or c) direct through me.
As a comment on service in accordance with article 10, in a letter dated 11 September 1980 addressed by the UK Foreign and Commonwealth Office to the Hague Permanent Bureau, the author wrote that ‘I am happy to confirm that our declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom “directly” through a competent person other than a judicial officer or official, e.g., a Solicitor.’. In 2008 the then Senior Master, Senior Master Whittaker, made it clear in a note that the position in England & Wales is that the definition of “competent person” within article 10 extends only to such a Solicitor (of the Senior Courts of England & Wales) and not, for example, to private process servers directly instructed. In January this year, Senior Master Fontaine endorsed that view in response to a question from me.
Practically, in the case of article 5 service, the issuer of the Request (issued in accordance with article 3) requests the CA to arrange service via me as an English Solicitor. In the case of article 10 service, the person requiring service (note the different wordings relating to this in article 10 b) and article 10 c)), requests me to serve direct. Clients generally prefer the first method, because it results in a formal Hague Certificate of Service issued and sealed by the High Court of Justice in London, which should halt any argument as to the legitimacy of service in its tracks.
In both cases I utilise the services of a specialist process server (hugely experienced in these matters), who acts as my agent – in accordance with long-standing practice in English civil proceedings. In relation to article 5 serves, our agreement with the CA requires that we always seek to serve in accordance with the court rules regarding the service of English civil process (generally by personal service upon the individual or entity), and only seek directions from the CA as to alternatives if this proves impossible. For consistency and procedural correctness I adopt the same methodology in relation to article 10 serves.
Thus, service (provided that it is by a method in accordance with English court rules) by a process server who is acting on the instructions of an English Solicitor, who in turn has been instructed properly in accordance with either article 10 b) or c), will be good. Service by a process server directly instructed by the US lawyer or party will not.
(Finally, nb that we have “Civil Procedure Rules”, not “Civil Practice Rules”.)
Graham Bridgman (gb@atpps.com, and see http://www.atpps.com)
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