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

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.

(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.

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.

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).

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.

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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.