Service of Foreign Proceedings in Ireland
The 21st century has seen Ireland become a leading inward investment location for multi nationals and is now home to many of their headquarters. The primary reason for this is our positive taxation environment along with other factors such as our highly educated workforce and commercial approach to new businesses. Ireland has also found favor as a location for the global funds industry, which continues to thrive despite the prevailing gloomy economic outlook. The funds industry in Ireland was established only 20 years ago in Dublin within the environs of the Irish Financial Services Centre (IFSC). The industry has grown to the extent that companies are now basing themselves both in the capital and in other major towns and cities such as Wexford, Waterford, Cork and Limerick. In the IFSC alone more than 430 international operations and 350 treasury entities are approved to operate making it the heartbeat of Ireland’s financial and commercial markets. Another booming sector in Ireland at present is aircraft leasing. The International Aircraft Registry operates out of Dublin and has earned an international reputation for regulatory and safety standards. This, together with our attractive fiscal policies has made Ireland the location of choice for international aircraft leasing companies.
It is therefore inevitable, especially now in the aftermath of the “credit crunch”, that the international entities located here will, at some point, find themselves the subject of or embroiled somehow in commercial disputes initiated outside of Ireland. This begs the question of how does one correctly serve proceedings instituted abroad on persons (companies or individuals) located in Ireland?
It is well known that the Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters of 15 November 1965 (or the “Hague Convention”) dictates the procedures to be followed by signatory States1. The Hague Convention entered into force in Ireland on 4 June 1994. Order 121B of our Superior Court Rules gives effect to the Hague Convention in Ireland and the rules contained within the Order regulate the service in Ireland of proceedings instituted abroad. The purpose of this briefing is to comment generally on the Hague Convention and to explain generally the procedure that must be followed under Irish law.
The Hague Convention provides that each State must designate a “Central Authority” to transmit and receive requests for service coming from other Contracting States. Order 121B makes provisions for the service of “foreign process” on any persons within the State of Ireland. “Foreign process” is defined as “any document initiating or relating to proceedings in a Convention country or in a foreign country which have been forwarded to the Central Authority for service in the State”. The Central Authority in Ireland for sending, receiving and carrying out requests for service is the Master of the High Court.
The Irish Rules as contained in Order 121B apply to the service of foreign process on any person in the State where the Master receives a request for service on that person from the Central Authority of another Convention country. The Irish Rules also allow for consular or diplomatic intervention in that the Department of Foreign Affairs may request service by way of a letter of request with a recommendation from the Minister of Foreign Affairs that it is desirable that the request should be complied with. The request may also come from a “judicial officer competent under the law of the State in which the document originates”. In Ireland a “judicial officer” can include a practicing solicitor, meaning that solicitors in Ireland may bypass the Master and send their own requests for service to the Central Authority of other signatory States but this position may differ between jurisdictions.
Rule 3 of Order 121B sets out the procedure to be followed when the Master receives a request for service in accordance with the Order. The following is intended to be a brief overview of that procedure:
- A “request for service” should be directed to the Master of the High Court by the Central Authority of the State where the proceedings originate together with two copies of the document to be served and two copies of a “summary” of the document to be served. Two certified copies of a translation of the request and the document to be served should also be sent to the Master if the document is not in English. Templates of the “request” and “summary” are annexed to the Convention and these forms must be used.
- Upon receipt of the request, the Master will check to see that it conforms to the templates annexed to the Convention. The applicant for service will be notified of any request which does not conform to the Convention and the Master’s objections to the request. Significant savings in terms of time can be made by simply ensuring that the correct forms are used in the request and they are completed correctly.
- A requesting party may specify in the request a preferred method of service and the Master may or may not direct service in the manner requested. The Master will usually direct personal service upon the person concerned.
- As is the case in the service of domestic proceedings, the process server must prepare a detailed Affidavit of Service. This is required even where service has not been effected to verify the attempts made at service and any other relevant details such as the costs of effecting or attempting to effect service.
- Where service has been effected successfully, the Master will certify as such in the form annexed to the Convention and he will return the Certificate and Affidavit of Service to the party requesting service.
- If the documents are not served, there is the option of applying to the Master for an order for substituted service of the proceedings.
Time Limits
Rule 3(10) provides that the Master may prescribe an appropriate length of time for service of the proceedings. However, while Order 121B Rule 3(10) may give the impression that there is a practice of ensuring that foreign proceedings are served quickly and efficiently, the reality is that the procedure from receipt by the Master of the request for service to certification of service by the Master, or not as the case may be, can take any number of months.
Conclusion
We advise international clients requiring assistance with the service of foreign proceedings in Ireland to rwun service of the documents under the Hague Convention in tandem with service under any local laws that may exist for service of documents outside their jurisdiction. The reason being that if service in accordance with local laws does not satisfy the Court having jurisdiction over the case, the procedure under the Hague Convention will already be in train which, in our experience, saves a significant amount of time overall.
1Signatories to the Hague Convention are: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belarus, Belgium, Botswana, Bulgaria, Canada, China, Hong Kong and Macao, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Korea, Kuwait, Latvia, Lithuania, Luxembourg, Malawi, Mexico, Netherlands, Norway, Pakistan, Poland, Portugal, Romania, Russian Federation, Saint-Vincent and the Grenadines, San Marino, Seychelles, Slovakia, Slovenia, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, UK, USA, Venezuela.