Tag Archives: Guernsey

Health Science Distributors Co. v. Usher-Sparks Revisited

Today we revisit the case of the day from October 28, 2011, Health Science Distributors Co. v. Usher-Sparks (M.D. Fla. 2012). Last time around, the judge held that Health Science had not shown that it had made adequate service of process on the individual defendants, Robert Usher-Sparks and Trevor Taylor, on on the institutional defendants, Wellsprings Trading, Ltd., Wellsprings Ltd., and Sarati International, Inc. Health Science gave service of process another try, this time with some more success as to the individuals, but not as to Wellsprings.

Health Science hired a process server to personally serve the documents on Usher-Sparks and Taylor in England (not in Guernsey, which raised issues in the prior post). The judge correctly held that such service is valid under Article 10(c) of the Convention, which permits service “directly through the judicial officers, officials or other competent persons of the State of destination”, in the absence of an objection from the destination state. The twist in the case is that service was effected by private process servers rather than by solicitors (it is well-established that solicitors may serve process in foreign cases, and in fact the UK central authority has indicated a preference for service by solicitors rather than via the central authority mechanism), but Health Science offered evidence tending to prove that such service was permissible under English law.

Health Science again tried to serve Wellsprings in Guernsey by leaving them at Wellsprings’s corporate address. The judge rejected this service. I am not knowledgeable about the law of Guernsey by any stretch, but Rule 2 Rule 3 of the Royal Court Civil Rules (2007), which I cited in the comments in the earlier post, seems clearly to require that service be made by the sergeant except in limited circumstances. Therefore, service was improper under Article 19 of the Convention, which permits service by other means “to the extent that the internal law of a contracting State permits methods of transmission, other than those provided for in the preceding articles, of documents coming from abroad, for service within its territory.”

I do have to wonder why Health Science didn’t make use of the central authority mechanism in Guernsey. In my experience the UK central authority gets things done without much delay, and it seems to me appropriate to look to the central authority particularly in jurisdictions like Guernsey, whose law is less familiar to US lawyers than, say, England and Wales.

Case of the Day: Health Science Distributors Co. v. Usher-Sparks

The case of the day is Health Science Distributors Co. v. Usher-Sparks (M.D. Fla. 2011). Health Science sued Robert Usher-Sparks and Trevor Taylor, who did business in Guernsey as Wellsprings Trading, for trademark infringement and unfair competition. Usher-Sparks and Taylor moved to dismiss for insufficient service of process. Health Service attempted to serve the summons and complaint by delivering the papers to an office administrator at Wellsprings’s offices, but the administrator refused to accept service on behalf of Usher-Sparks or Taylor.

Article 19 of the Hague Service Convention permits methods of service other than the methods prescribed by the Convention “to the extent that the internal law of a contracting State permits” them. The question was whether the service complied with the UK’s internal law. According to the magistrate judge, service at an individual’s place of business under Rule 6.9 of the Civil Procedure Rules (question for UK lawyers: do the rules that apply to service of process in England and Wales apply in Guernsey?) is permissible only if personal service or other means of service are inapplicable, and Health Science had failed to show that those methods did not apply. I can express no opinion on the correctness of this view under UK law.

The case is noteworthy because it contains a rare reference to Article 19. As the UK’s declarations and reservations to the Hague Service Convention make clear, it is entirely proper to serve process in England and Wales by having a solicitor serve the documents personally on the defendant. Thus the UK is a country where there may not be a strong reason to make use of the central authority mechanism for service of process.