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Mills Selig


Up your service game!

Alas, this is not a tennis themed article (though the title may have been inspired by Emma Raducanu’s recent success).  It is, quite remarkably, the third in a trilogy of pieces looking at issues around service of court proceedings.  The writer had assumed that that topic had been exhausted, until the efforts of US lawyers to effect service on Prince Andrew made headline news on both sides of the Atlantic!

The fallout from the prince’s association with Jeffrey Epstein continues in the form of civil proceedings issued in New York by a woman who accuses him of sexually assaulting her two decades ago.  The woman’s lawyers initially attempted to effect service of the relevant court papers by leaving them with a police officer stationed at the gates of Prince Andrew’s Windsor home.  They also took the rather unusual step (in this jurisdiction at least) of sending the papers to a barrister known to act for the prince.  At a pre-trial hearing in NYC last week, an attorney representing the prince denied that he had been properly served notice of the case under UK or international law. 

Pausing there, this argument is likely to be technically correct – service in the UK is generally carried out either personally via a process server or, alternatively, by post.  The process server in this case was unable to gain access to the prince himself or indeed his property.  The writer has in the past been faced with a similar scenario (albeit the individual evading service from within his extremely well secured property was not quite as infamous as the main protagonist in the present case).  In those circumstances, the NI High Court judge granted an order permitting substituted service (service in an alternative form not set out in the court rules).

It is possible to serve on solicitors acting for an intended defendant, although those solicitors would have to confirm in advance that they had the necessary authority to accept service on behalf of their client (see our previous article dealing with the pitfalls of failing to check this point).  This does not apply to barristers in the UK, unlike trial attorneys in the US.

The Claimant’s legal team have since invoked the provisions of the Hague Service Convention to which both the UK and the US are signatories.  The Convention provides channels of transmission to be used when judicial or extra-judicial documents require to be transmitted from one signatory to another.  The Convention designates a main channel for each signatory; in the UK the central authority is the Senior Master of the High Court.  After some initial procedural issues, the High Court has now apparently notified the prince of the case.  The prince’s lawyers have until the end of this week to challenge the decision to recognise the validity of the Hague Convention request for service.

This case also raises the question of whether it is necessarily the best tactical move to take every procedural point available to you in the course of litigation.  Tempting as it can be, the optics at times can weigh in favour of letting some such points go.  I have no doubt that this issue will have been well ventilated by those advising the prince. 

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