My last post reviewed an affidavit of an English process server filed by the lawyers for Virginia Giuffre, who has brought a Jeffrey Epstein-related lawsuit against the Duke of York in the Southern District of New York. The tl;dr was that the service (by leaving the documents with the police outside Prince Andrew’s Windsor home) was good if the plaintiff’s lawyers had an English solicitor arrange for the service and if the service was valid under English law. We now have some more to work with, namely, a letter from David Boies to the court explaining the plaintiff’s position regarding service and a letter from Gary Bloxsome, the Duke of York’s solicitor, to Senior Master Fontaine, who is the central authority for England and Wales under the Service Convention.
What do we learn from the Boies letter? For one thing, we learn that the plaintiff has sought to serve process by several means. In addition to the service outlined in the affidavit, Boies’s firm attempted service by mail and sent a request for service to the UK central authority, which apparently has not yet been executed. Let’s start with the service by mail. Under Article 10(a), service by mail is permissible under the Convention unless the state of destination has objected, and the UK has not objected. But as I explained in the prior post, it’s no enough to say that a method of service is permissible under Article 10. It must also be authorized under the law of the forum. Service by mail is authorized under FRCP 4(f)(2)(C)(ii), but that rule requires the use of “any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” I do not think that the plaintiff’s efforts at service by mail meet the requirements of the rule. Boies’s Schiller’s London office apparently sent the documents by mail, and there is no indication that a return receipt was requested or received (although there is a good photograph of the papers being deposited in the mailbox—do they not have an equivalent to certified mail receipts in the UK?)
What about the request to the Central Authority? There is nothing really to say, yet, except that it’s clear the Central Authority has received it and not yet executed it. Assuming the request is in the proper form, there is a route to refusal that I imagine is being discussed, namely, a refusal under Article 13, which allows a state to refuse to comply if it “deems that compliance would infringe its sovereignty or security.” You sometimes see this in cases with politically sensitive defendants, e.g., Gurung v. Malhotra or other cases in the “Indian diplomats or consular officers accused of mistreating domestic workers” genre. I discuss the question whether the request complies with the Convention below.
The Boies letter does not really answer the question I posed in the prior post about whether the plaintiff retained an English solicitor to effect the service. The reference to Boies Schiller’s UK office, though, would seem to make that more likely.
Finally, the Boies letter suggests the court may authorize service by alternate means under FRCP 4(f)(3). There has as yet been no motion, and my view is that a motion should or even must precede the attempt at service by alternate means. But service under FRCP 4(f)(3) has to comply with the Convention. Boies is suggesting that service on Prince Andrew’s lawyers would be acceptable. But if those lawyers are in the UK, how can the documents be transmitted to them? Answer: by a means authorized or at least permitted by the Convention. I’ve written a lot about this issue in the case of countries like China, which have objected to service by mail under Article 10(a). The problem is easier in the UK, which has not made such an objection. But I think Boies would still have to show that email is within the meaning of the term “postal channels” so as to bring the service within the scope of Article 10(a).
What about the Bloxsome letter? The letter does make one significant mistake. It suggests that a request for service would have to come from US judge rather than from the plaintiff’s lawyers. In fact, the question of who is competent to make a request for service is a question to be decided under the law of the forum, and under American law, for better or worse, it is clear that the plaintiff’s lawyer is competent to make the request. The letter also seems to confuse Article 5 with Article 10(b) and (c) by suggesting that Article 10 is relevant to the question of who may submit a request to the central authority. Article 10 addresses alternate methods of service when a plaintiff does not wish to use the central authority.
I will continue to follow this, as I suspect this is a case where the parties will fully litigate the service issues.