Solicitors in Scotland who after 31st May 2001 wish to take part in receiving and transmitting documents within the European Union will require to be accredited for those purposes by the Law Society of Scotland.
By virtue of Regulation of the Council of the European Union No. 1348/2000 of 29th May 2000 new provision is made for service in the member states, except in Denmark, effective from 31st May 2001. These provisions will supersede existing provisions contained in the Hague Convention of 15th November 1965 on the service abroad of judicial and extra-judicial documents in civil or commercial matters (‘the Hague Convention’).
General Provisions of the Regulation and its Application to Scotland
The Regulation applies in civil and commercial matters where a judicial or extra-judicial document has to be transmitted from one member state to another for service there. However it does not apply where the address of the person to be served with the document is not known. It will be possible for documents to be transmitted only between ‘transmitting agencies’ and ‘receiving agencies’. A ‘transmitting agency’ will send documents to be served in another member state while a ‘receiving agency’ will receive documents from another member state for service in its own state. The Regulation takes account of devolution so that countries like Scotland, having an autonomous legal system, will have their own transmitting and receiving agencies.
It is the intention of the Scottish Executive that Messengers-at-Arms and solicitors accredited by the Law Society of Scotland be designated as transmitting and receiving agencies for the purposes of the Regulation. Sheriff Officers will also be designated as transmitting agencies in respect of Sheriff Court processes.
While all Sheriff Officers can be transmitting agencies in respect of Sheriff Court processes, only Messengers-at-Arms can be receiving authorities. This is based on practical considerations since writs will be received from all levels of courts in different states within the European Union. A Sheriff Officer/Messenger-at-Arms receiving such instructions just now has to work out whether the writ comes from the equivalent of the Sheriff Court or the Court of Session and if the Sheriff Court is faced with the possibility of applying one of five sets of rules concerning service – Small Claim Rules, Summary Cause Rules, Ordinary Cause Rules, Summary Application Rules, and Child Care and Maintenance Rules. It is therefore a lot simpler for only Messengers-at-Arms to be the sole receiving authority so far as the Messenger-at-Arms/Sheriff Officer profession is concerned. It is then clear not only who carries out service under the Regulation, but that the Court of Session Rules are applied.
The function of a transmitting agency is to send the documents and to receive back a certificate from the other state. It will complete the documentation and check the certificate of service. The function of a receiving agency, however, will fall into two parts. Firstly, there will be the agency fee for handling the documentation; secondly, the fee for actually carrying out service. The first part of this work will be capable of being carried out either by a Messenger-at-Arms or an accredited solicitor. Only a Messenger-at-Arms will be able to carry out actual service of the incoming document.
In addition to the designation of transmitting and receiving agencies by each member state, including the above agencies for Scotland, each member state must designate a central body responsible for supplying information to the transmitting agencies, seeking solutions to any difficulties which may arise during transmission of documents for service and, in exceptional cases, forwarding at the request of a transmitting agency, a request for service to the competent receiving agency. The Scottish Ministers will be designated the central body for Scotland.
Service of Judicial Documents
The basic principle is that judicial documents are to be transmitted directly and as soon as possible between the transmitting and receiving agencies. This may be done by any appropriate means, provided the content of the document received is true and faithful to that of the document forwarded and all the information in it is easily legible. The transmitting agency’s function is to send the document for service to the appropriate receiving agency, accompanied with an official ‘request for service of documents’ in the form set out in the annex to the Regulation. This form must be completed in an official language of the member state addressed or in another language which it has indicated it can accept. The document itself must be in an official language of the member state addressed or a language of the member state of transmission which the addressee understands. The applicant for transmission must be informed that if the document is not so translated then the receiving authority may refuse to accept it for service in the member state addressed. If the transmitting agency wishes a copy of the document to be returned together with the certificate of service, it must send a copy of the document in duplicate. The applicant must bear any costs of translation prior to the transmission of the document, without prejudice to any possible subsequent decision by the court on liability for such costs.
A receiving agency must within seven days of receipt of a request for service send a receipt to the transmitting agency by the swiftest possible means of transmission using the standard form in the annex to the Regulation. The receiving agency must arrange for service of the document, except in four circumstances:
- where further information is needed before service can be carried out, in which case it may then contact the transmitting agency to secure the missing information or documents;
- it may return the request together with the notice of return in the standard form in the annex to the Regulation, if a request for service is manifestly outside the scope of the Regulation (e.g. criminal proceedings, or where the address of the person to be served with the document is not known);
- where the receiving agency does not have territorial jurisdiction to arrange for service, in which case it must forward the request to the receiving agency having territorial jurisdiction if the request is in an official language of that other state, or a language it has agreed to accept, and at the same time inform the transmitting agency using the standard form in the annex to the Regulation; or
- where the addressee has refused to accept the document because it has not been translated into an official language of his state or a language of the member state of transmission which he understands.
The receiving agency must, if none of these exceptions apply, either itself serve the document or arrange for its service either in accordance with its own law or by a particular form requested by the transmitting agency unless that method is incompatible with the law of that member state. When the formalities concerning service have been completed, the receiving agency must complete a certificate of service in accordance with the standard form in the annex to the Regulation in an official language of the member state of origin or in a language which it has indicated it can accept. If it has not been possible to effect service, then the transmitting agency must be informed of this within one month of receipt of the request by means of a certificate in the standard form in the annex to the Regulation in an official language of the member state of origin or in another language which that state had indicated it can accept. The date of service will be the date on which it is served in accordance with the law of the member state addressed except where the document must be served within a particular period in the context of proceedings to be brought or pending in the member state of origin, in which case the date of service is to be fixed by the law of that member state.
Service by Post and ‘Direct Service’
The elaborate scheme for service between member states by means of transmitting and receiving agencies is without prejudice to serving documents directly by post to persons residing in another member state subject to that state specifying the conditions under which it will accept service of judicial documents by post. Similarly, the Regulation does not interfere with the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the member state addressed, unless any member state opposes service in accordance with these arrangements. These two exceptions are very important and in many ways will derogate from the scheme set up by the Regulation itself. If a member state does not impose restrictions on these methods of service then it will be possible to effect service without going through a transmitting authority and that either by carrying out postal service directly in the other state or, where competent, arranging service through a Messenger-at-Arms or Sheriff Officer.
Costs and Fees
The service of judicial documents must not give rise to any payment or reimbursement of taxes or costs for services rendered by the member state addressed. However, the applicant must pay or reimburse the costs occasioned by the employment of a judicial officer or of a person competent under the law of the member state addressed; or the use of a particular method of service. The intention behind this appears to be to prevent central bodies charging costs for any services, which they may provide, but not transmitting and receiving agencies independent of the state. It is therefore envisaged that both officers of court and accredited solicitors will be free to charge for services according to normal commercial arrangements. Indeed, it is unlikely that any one would wish to act as a transmitting or receiving agency in the absence of a fee. The applicant for transmission will in the first instance be bound to pay the costs associated in translating the document for transmission and the request for service form.
After 31st May 2001 it will be possible in most cases to serve a writ in another member state by means of postal citation provided the conditions for such service as required by that state are followed. In some states (e.g. France, The Netherlands) it is likely that even personal service can be effected through an officer of court in Scotland instructing an equivalent officer in the state addressed. In circumstances other than these it will be necessary to make use of the system of transmitting and receiving agencies to be established under the Regulation. The result is a Scottish solicitor will not be able directly to arrange for service of a Writ or Summons in another member state unless he is accredited for that purpose by the Law Society of Scotland or instructs an officer of court or another solicitor who is accredited. There will be an opportunity for solicitors, if they consider it commercially expedient, to be accredited as transmitting agencies and also as receiving agencies for the purposes of handling incoming documentation. Such solicitors would be responsible for examining the incoming documentation within the timescales required by the Regulation, arranging service by a Messenger-at-Arms, and transmitting the relevant certificate of service to the transmitting agency in the other member state. A wise precaution in some cases would be to require any fees to be paid in advance.
Solicitors who may be interested in accreditation as transmitting and receiving agencies under the Regulation must themselves carefully consider what would be involved in having to comply with the Regulation, including the financial implications, before seeking accreditation. Expressions of interest should be registered with the Society in accordance with the separate notice in this month’s Journal.
George Jamieson is a partner with Walker Laird Solicitors in Paisley
In this issue
- President's report
- Remembering Donald Dewar
- Providing pension provision on divorce
- The Title Conditions Bill
- Modern code for adults with incapacity
- Delivering legal services to the community
- Service of documents within the EU
- EU's Charter of Fundamental Rights
- Distance selling regulations now in force
- Controlling paper and electronic files