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By Ted Folkman of Rubin and Rudman LLP

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Case of the Day: Baskett v. Autonomous Research LLP

The case of the day is Baskett v. Autonomous Research LLP (S.D.N.Y. 2018). Erin Baskett sued Autonomous Research LLP, an English firm, for employment discrimination and retaliation under New York and federal law. She served process in England by private process server (not a solicitor). Autonomous Research moved to dismiss for insufficient service of process.

The UK is a party to the Hague Service Convention, which is exclusive, and therefore service must be by a method that the Convention permits. Provided the state of destination doesn’t object, the Convention permits “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,” Art. 10(c). The UK’s objection reads:

With reference to the provisions of paragraphs (b) and (c) of Article 10 of the Convention, documents for service through official channels will be accepted in the United Kingdom only by the central or additional authorities and only from judicial, consular or diplomatic officers of other Contracting States.

But a later letter from the Foreign and Commonwealth Office says:

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.

The court, erroneously I think, held that service by a private process server was proper. It noted the UK’s statement, at the 2003 Special Commission, confirming “its preference for the use of direct service through English solicitors on residents of England and Wales.” The court reads this to mean that there is no rule requiring a solicitor, just a preference. But I think the court is misconstruing the letter. The UK’s position is that it prefers foreign parties to serve process by solicitor rather than by the central authority. This is why the reference is to a preference for direct service rather than just a preference for solicitors. It’s true that the Foreign Office’s letter says that solicitors are just examples of a competent person. But England has no profession of huissiers. I don’t know of any reason to think that a private process server is a competent person under English law.

Update: Alert reader and fellow blogger Aaron Lukken reminded me that in a comment to a post from October 2016, an English solicitor stated that the Special Master had expressly taken the view that only solicitors are competent persons within the meaning of Article 10(c). This reinforces the basic take in this post.

Ted Folkman

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7 responses to “Case of the Day: Baskett v. Autonomous Research LLP”

  1. Ian D. Withers

    Private Process Servers in England & Wales have operated for over 150 years at leats!! There has never been any challenge in the UK to their existence!!
    If fact references to Private Process Servers appear in many Acts, including the Private Security Industry Act 2001 (which exempted process serving as a licensable activity for licensing purposes )

    The latest Practice also incudes in terms of foreign process that service can be made by a Server appointed by the Lord Chancellor to serve documents to which this Section applies, (meaning a Practising Solicitor or his Agent.

    I have been serving since 1960, and to date have never had a Service challenged,

    PART 6 – SERVICE OF DOCUMENTS FROM FOREIGN COURTS OR TRIBUNALS

    Scope of this Section

    6.48 This Section –

    (a) applies to the service in England and Wales of any document in connection with civil or commercial proceedings in a foreign court or tribunal; but

    (b) does not apply where the Service Regulation (which has the same meaning as in rule 6.31(e)) applies.

    Back to top
    Interpretation

    6.49 In this Section –

    (a) ‘convention country’ means a country in relation to which there is a Civil Procedure Convention (which has the same meaning as in rule 6.31(c));

    (b) ‘foreign court or tribunal’ means a court or tribunal in a country outside of the United Kingdom; and

    (c) ‘process server’ means –

    (i) a process server appointed by the Lord Chancellor to serve documents to which this Section applies, or

    (ii) the process server’s agent.

    Reply
    1. Ted Folkman

      Well, you certainly have real experience that I lack! But how do you account for Section 6.49 to 6.52? As I read the whole group of rules, they seem to apply to service performed under the auspices of the Senior Master, who is the central authority for England and Wales. (See, e.g., Section 6.51, “The Senior Master will determine the method of service;” section 6.52, “where service of a document has been effected by a process server, the process server must (a) send to the Senior Master a copy of the document …”).

      So as I understand things, yes, of course, when the Senior Master receives a request for service under the Convention, she may engage a process server to make service. And in light of the declarations etc. that I cited in the post, if a US litigant engages a solicitor, who is clearly a competent person under Article 10(c), the solicitor doesn’t typically serve the document himself, but hires a private process server.

      The question, though, is whether the US litigant can directly hire an English private process server, which is to say, are private process servers “judicial officers, officials or other competent persons of the State of destination,” under English law?

      You may be saying that the answer is “yes,” although your comment only cites the definitional section of the Rules, and if so, I am happy to stand corrected. But certainly the view in the United States, among folks who write about this stuff, is that when serving in England and Wales under Article 10(c) of the Convention, you must hire a solicitor, who then contracts with a private process server, because the solicitor, not the private process server, is the “competent person” under Article 10(c).

      Reply
      1. Aaron Lukken

        (From folks who write about this stuff…)

        The court got this one wrong. But that’s understandable if none of the lawyers in the room (including the judge) have a deep understanding of Hague doctrine. Most lawyers don’t– and if they did, I wouldn’t have a practice!

        The Special Master and Queen’s Remembrancer is the judicial authority in London who opines on these matters, and her office has consistently stated that valid service of foreign process in England & Wales must go through either the Foreign Process Section of the Royal Courts (Article 5) or through a solicitor (Article 10(c)). Mail is also valid under 10(a), but that’s mere dicta.

        The problem: I don’t know of an actual precedent handed down by the Master that definitively states that position. This could very well be the case to make that happen on appeal.

        Reply
    2. Ted Folkman

      This, by the way, is the view of an English solicitor, included in a comment to a post from October 2016:

      As a comment on service in accordance with article 10, Senior Master Fontaine recently endorsed an opinion issued by her predecessor, Senior Master Whittaker, to the effect that the position of the English & Welsh Central Authority is that, following the letter from the UK Foreign Office to the Hague Convention dated 11 September 1980, the definition of “competent person” within article 10 extends only to a Solicitor (of the Senior Courts of England & Wales so far as English & Welsh jurisdiction is concerned) and not, for example, to private process servers directly instructed.

      Reply
      1. Graham Bridgman

        As the English Solicitor referred to, here is an extract from the opinion of Senior Master Whittaker:

        In my view “a competent person” may in the terms of our declaration be “other” than a Judicial officer or official, but we still have to look back to the actual convention to interpret the term, which in my view has to be construed ‘ejusdem generis’ with ‘judicial officer’ and ‘official’, that is, the convention is speaking of a competent person of the same class. This is intended to cover different systems in different countries while not losing the sense that it means that the method of service should be by a means that is official – it is referring to the type of person or agent that can be used. Some countries like France have particular persons, in their case Huissiers, who are legally empowered to serve process. In this country there are no such persons other than County Court Bailiffs who are empowered to serve the process of the County Court. However, you would only be able to use them if the matter were to be served through the Court in any event.

        I have to say that if the second declaration had not specifically mentioned solicitors, I would have restricted direct service to service through the court by a court bailiff. I imagine that the thinking was at the time that as an English / Welsh Solicitor is an officer of the Court, then service by other competent person could be through such.

        I am prepared to accept that but in my judgment that is as far as it goes. Unless and until other classes of person such as HCEO’s are empowered to serve process then direct service will be restricted to service through a solicitor admitted in this jurisdiction.

        (HCEO = High Court Enforcement Officer)

        In answer to Mr Withers, the rules go on to say that (CPR 6.51) “The Senior Master will determine the method of service.” and given Senior Master Whittaker’s note that means the process server has to be acting on the instructions of a solicitor.

        Reply
        1. Ted Folkman

          I think Graham’s citation to this statement from the Senior Master is dispositive, at least unless a future Senior Master takes another view.

          Reply
  2. Case of the Day: Brown-Thomas v. Hynie | Letters Blogatory

    […] the reasoning was incorrect in some of the details. The judge followed the erroneous decision in Baskett v. Autonomous Research LLP (S.D.N.Y. 2018), holding that a private process server is a competent person for purposes of UK law under Article […]

    Reply

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