The case of the day is SEC v. Bowerman (D. Mass. 2024). The SEC brought a securities fraud claim against Bowerman, who lived in the UK. According to the return of service, a “private process server” personally served the papers on Bowerman at an address in England. The SEC moved for entry of default when Bowerman did not answer the complaint.

The judge correctly denied the motion. The Convention is exclusive, which means that when it applies (as it did in this case), you have to make service using one of the methods that the Convention authorizes or at least permits. Article 10(b) and (c) provide for effecting service via competent persons in the state of destination, but the UK’s declaration states that any such requests must pass through the UK central authority and must emanate from “judicial, consular or diplomatic officers of other Contracting States.^*” That sounds bad. It suggests that you can’t serve via a private process server even if a private process server is competent under UK law, unless you have the court transmit the request for service.

But notice the asterisk. In a 1980 letter from the Foreign and Commonwealth Office to the Permanent Bureau of the Hague Conference, the UK made the following clarification:

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. 

I am not really sure how that is supposed the square with the language of the declaration, but nevertheless, the rule in the UK is that you can use a process server to serve process, as long as a solicitor hires the private process server.

It may be that that’s what the SEC did, and the facts simply weren’t reflected in the return of service. But if not, then the SEC is going to have to start again.

Kudos to Judge Kelly and her law clerks for picking up on this in an ex parte context. More judges need to do this.