The joy of regained freedom with the exit from the European Union quickly turns into post-Brexit blues for creditors in the United Kingdom when they try to have their claim filed with a court in their country served in the European Union. Now that the transitional period for the application of the European Regulation on the Service of Documents has expired on December 31, 2020, the familiar routes are no longer viable and new paths must be sought in the thicket of bilateral and multilateral agreements. In the case of legal action against a business partner in Germany, there are essentially two ways, a short steep one with a considerable risk of falling off and a very long one with many twists and turns, which is cumbersome and lengthy but safe:
For the brave: The fast track
Those of us who have lived to see the last dinosaurs will certainly remember the “Anglo-German Treaty on Legal Relations of March 20, 1928”. The correct title is “Convention between His Majesty and the President of the German Reich regarding Legal Proceedings in Civil and Commercial Matters.” Article 6 of this agreement allows that “documents may also be transmitted by post in cases where this method of transmission is permitted by the law of the country from which the document emanates.” This agreement has never been terminated or otherwise overridden by express agreement. Nevertheless, there is uncertainty as to whether the agreement is still applicable or has become obsolete and therefore ineffective as a result of decades of disuse.
Whoever likes and finds a court that goes along with this way can therefore simply serve the claim by mail or have it served by the court with reference to CPR 6.40 and Art. 6 of the Anglo-German Treaty of 1928. The Royal Mail provides an international tracked-and-signed-service including a signature on delivery and an online delivery confirmation. If that is accepted as proof of service according to UK procedure rules, it may be worth to try. But perhaps you better check with the Foreign Process Section of the Royal Courts of Justice in advance.
Even if the court seized of the case considers service of the action by mail to be admissible, this does not settle the matter: if one of the contracting states or one of its courts determines that the Treaty of 1928 is no longer applicable, the judgment will not be enforceable in Germany. And that is likely to be worst case that can be assumed, especially if the claim has become time-barred in the meantime and a renewed action with proper service can no longer be successful.
For the risk conscious: The long and winding road
The safe way is to proceed according to the regulations of The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of November 15, 1965 (HCS). Because Germany has declared its objection to a simplified service (conf. Article 10 HCS) formal service according to the methods prescribed by German law is required.
According to the Convention, the competent authority under the law of the country of origin shall address the request for service of the claim to the Central Authority in the country of destination (Art. 3 HCS). In the UK, the authority eligible to apply for service of documents is The Senior Master of the Royal Courts of Justice. It is more difficult to find the Central Authority in Germany because each federal state has its own Central Authority (which makes one doubt the meaning of the term “central”). The request for service of a document must be made in a form conforming to the model form annexed to the Convention.
The request form must be accompanied by the documents required under the CPR for service of a claim (in duplicate), i.e., at least the Claim Form N1, the Particulars of the Claim, the Notice for Service out of the Jurisdiction N510, the Response Pack N9, the Admission Form N9A, the Defence and Counterclaim Form N9B and the Notes for Defendant on Replying to the Claim Form N1C. Don’t forget to determine and to insert the extended responding periods in case of service abroad in the forms.
Each and every document to be serviced requires a German translation. Concerning the forms they require, the English courts, in their kindness and wisdom and filled with the spirit of service, have so far refrained from providing translations into the languages of the most important trading partners of British companies. Each individual form to be attached to a claim when serviced must therefore be translated into the language of the defendant at the expense of the claimant – as must the Particulars of the Claim and its annexes. Neither the HCS nor German law requires any particular form of the translation, however, CPR 6.45 (3) does: The translations require certification of the translator with details of his qualifications. And, of course, this certificate must also be translated into the language of the defendant. In view of the costs involved, the Particulars of Claim should be kept as short and concise as possible and unnecessary statements should be avoided. It is probably also not the best idea to attach documents amounting to several hundred pages as evidence.
Once the application for service arrives at the competent Central Authority in Germany, service and the dispatch of the certificate confirming service will take four to six weeks. However, the complete process can easily take three months and even more.
When it comes down to taking the safest way, only the route under the Hague Convention on the Service Abroad can be considered for service in Germany when a claim is filed in the UK. Only if justified by extremely good reasons the risk of service by mail may be taken. If you feel uncomfortable with this: At present, it would probably be best if you assumed that these complications and legal uncertainties are just insignificant side effects of the Brexit and no reason to complain. Accept that such trifle does not outweigh the merits of a splendid isolation in a global economy, if you can. And stay cheerful.
To find out more about this topic contact Partner Carsten Gerlt here.