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Process Servers in Dublin-Hague Convention

As there is no agreement in place between the United States and Ireland for the automatic recognition and enforcement of Judgments obtained from a court in the US in Ireland, it will be necessary to rely on common law rules.

This can lead to difficulties of enforcement of judgments obtained outside Ireland..

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In fact, there is no bilateral treaty or multilateral international convention in force between the United States of America and any other country on a reciprocal recognition and enforcement of judgments.

 

The Irish common law rules/principles are quite restrictive and enforcing non-EU judgments in Ireland can be problematic as a consequence.

 

Common law principles

 

The common law principles that the Irish Courts will rely on are

  1. The US judgment must be for a liquidated sum, that is a definite monetary value
  2. The US judgment must be final and conclusive
  3. The US judgment must be granted in a Court of competent jurisdiction.

 

Number 1 above is obvious-you either have a judgment for a definite sum or not.

 

Likewise with number 2-the legal proceedings must have come to an end with no opportunity to appeal the judgment and the judgment must have been achieved following the correct procedures in the state in the US which granted the Judgment.

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 Court of competent jurisdiction

Number 3 above can be the most problematic as a result of a case called Rainford v Newell Roberts [1962] IR 95 where a Judgment was obtained by Rainford in the UK and sought to enforce the judgment in Ireland. (This situation would not arise now as a result of both countries mutual recognition of judgments due to various EU law and international conventions but is illustrative of the common law principles involved in seeking to have the US judgment enforced here)

 

This problem centres primarily on the question of proper service of the proceedings on the Defendant, as accepted by Irish rules of private international law.

 

In Rainford v Newell-Roberts the defendant had not been in the UK when served with the legal proceedings and had therefore not submitted to the jurisdiction of the English Courts and as a consequence the Irish Courts did not allow enforcement of the Judgment.

 

Where the dispute or Judgment arises as a result of breach of contract and the contract provides that a foreign jurisdiction will have exclusive jurisdiction in the event of a dispute the Irish Courts would be very likely to stay any proceedings instituted in Ireland and recognise the exclusive jurisdiction clause in the contract.

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Grounds on which Judgment will be refused

In addition to the above considerations and criteria the Irish Courts will refuse to grant Judgment in Ireland where

  1. The Judgment would violate Irish public policy
  2. The foreign judgment was obtained by fraud
  3. The foreign judgment is in breach of natural justice
  4. The foreign judgment cannot be reconciled with an earlier foreign judgment.

Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12

This 2012 decision of the Supreme Court in Ireland is instructive and helpful.

In Flightlease (Irl) Ltd (In Vol Liq) & Cos Act [2012] IESC 12 the Supreme Court was invited to accept the appropriate basis upon which the common law in this jurisdiction should recognise an in personam order of a foreign court. Flightlease argued that the traditional test as set out in Dicey (and in particular Rule 36) represents the current law in this jurisdiction. Swissair contended that the courts in this jurisdiction should follow the lead of Canadian courts and adopt a ‘real and substantive connection’ test.

(Read the full decision in this case here)

According to Rule 36 of Dicey if a judgment debtor was, at the time the proceedings were instituted present in a foreign country or if the judgment debtor submitted to the jurisdiction of the courts of the foreign country the Irish courts would recognise and enforce a judgment of a court of that country. (Dicey, Morris & Collins on Conflicts of Laws 14th edition (“Dicey”))

 

“Rule 36. Subject to rules 37 to 39, a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition in the following cases:

 

First case. If the judgment debtor was, at the time the proceedings were instituted, present in the foreign country.

 

Second case. If the judgment debtor was claimant, or counterclaimed in the proceedings in the foreign court.

 

Third case. If the judgment debtor, being a defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings.

 

Fourth case. If the judgment debtor being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings to submit to the jurisdiction of that court or of the courts of that country.”

 

The Supreme Court decided that to follow the lead of the Supreme Court in Canada would lead to the Supreme Court in Ireland exceeding it’s judicial function and that the correct position is as set out by Rule 36 in Dicey outlined above.

You can learn more about debt collection in Ireland for international clients or contact us directly through our contact page.

By Terry Gorry Google+

Process serving in Ireland for litigants in non EU countries is provided for by the Hague Convention.

There are a number of procedures laid down but the safest and surest method to ensure effective service which will stand up to challenge is to instruct a solicitor in Ireland to act on your behalf.

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Whilst the cost of doing so may be off putting in the first instance it will, to your client, look like money very well spent if you avoid a challenge to your service when you go to your local Court seeking a Judgment or Court Order.

Service of process for non EU countries

The service of foreign process in Ireland for documents originating in non-EU countries must be carried out under the procedure laid down in the Hague Convention of 1965 which dealt with the service of judicial and extrajudicial documents in Civil or Criminal matters abroad.

Please note this Hague Convention only applies to signatories of the Hague convention and non EU countries; service between EU countries is covered by the Brussels I regulation, the Brussels convention or the Lugano convention.

So the procedure discussed here would apply if you were an American or Australian company or bank for example seeking to have documents served in Ireland on an Irish defendant.

The Hague convention rules which cover this area were given effect in the Rules of the Superior Courts in Ireland under statutory instrument 101/1994.

These rules deem the Master of the High Court to be the Central Authority in Ireland.

The procedure involves you as a judicial officer in, say, the United States filling out a form which is annexed to the Hague Convention which is called a Request form.

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You can access the request form here and learn more about the Hague Convention service section here.

(Do note that if the request is not a Hague convention request and is not in English then the request and documents will have to be translated into one of the two official languages of the Irish State-English or Irish-and two copies of all documents will have to be provided)

The Hague Convention  form is in fact in 3 parts-Request, Certificate and Summary.

If the request is a Hague Convention request from a Convention country then the Request form is left in with the Central Office of the High Court and if the Central Authority is satisfied that the Request is in conformance with the Hague Convention then the Central Authority generally directs service in the manner requested by the applicant unless this method is incompatible with the laws of Ireland or is not in compliance with the practice and procedure of the High Court.

If the Central Authority is not satisfied with the Request it can set out it’s objections to allow the applicant rectify the matter.

If there is no specific method of service requested by the applicant the Central Authority will direct personal service on the Defendant. If this is the case the Central Authority may direct service by the Chief Solicitor’s office.

Service is then carried out by delivery and leaving with the Defendant one copy of the documents to be served and any translation if appropriate.

Once service is then effected by the process server he/she returns to the Central Authority with one copy of the process and an Affidavit setting out how service was carried out.

This affidavit sets out how service was effected.

(The Central Authority may stipulated a time period within which service was to be effected)

If and when the Central Authority is satisfied with service it will issue a certificate to this effect which will be your proof of service under the procedure laid down in the Hague Convention-this Certificate is part 2 of the Request form which you can access above.

Process servers in Ireland

We provide process serving services for a growing number of international clients.

Our membership of the Law Society of Ireland, understanding of the laws applicable in Ireland and the Rules of the Superior Courts, ensures that our clients receive a professional service from start to finish.

Please use the Contact page to request a quotation or email Terry Gorry Solicitor directly at terry@businessandlegal.ie (Terry Gorry Solicitor)

Avoid This Common and Costly Mistake When Looking for a Process Server in Ireland

By Terry Gorry Google+
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Solicitors Dublin assist many US attorneys and litigants who need to have service of legal documents effected on defendants in Ireland.

The best and safest way to be sure of good service is to have an Irish solicitor serve the defendant in person.

process-servers-dublin

Whilst it is the case that the Hague Convention provides for service by a number of internationally agreed methods such as

  • international mail
  • sending the request in the appropriate Hague Convention Request for Service form directly to the Central Authority in Ireland (the Central Office of the High Court)
  • instructing an Irish solicitor to handle service in person

only the last option above offers sufficient protection in our experience.

As there is no bilateral agreement between the US and Ireland in respect of recognition in Ireland of judgments obtained in the US our experience has been that the Courts in both the US and Ireland may reject service if challenged by the defendant.

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The option of sending your judicial papers together with the Hague Convention Request for Service form is, in theory, a better approach the reality of the situation on the ground is that there are only a limited number of people in Central Office and suitable people around the country to deal with your request.

This poses two problems:

  1. service, if effected, may be slow due to the growing workload
  2. if the defendant proves elusive the papers may be returned unserved.

The best and safest approach to take is to instruct a solicitor in Dublin or Ireland to carry out the task for you. The advantages of this method of service are

  • local knowledge
  • speed
  • familiarity with the procedure and the requirements of Central Office.

How to Obtain a Certificate of Service Under the Hague Convention Procedure

Solicitors Dublin can offer a fixed fee service so you know what your costs will be at the outset and you can be sure of a professional service.

You will need to send two copies of

  1. the Hague Convention Request for Service Form with the appropriate request for service wording and
  2. the legal papers to be served.

We then check over the papers and see that they are in order and let you know if anything needs to be amended. We will bring the papers and request form to the Central Office of the High Court who will then check that the papers are in order.

Assuming that they are in order either the Master or Deputy Master of the High Court that service is to be effected by the principal solicitor of Solicitors Dublin or their agent for that purpose.

We will then appoint an agent to serve the defendant in person or effect service ourselves. Once service is effected we prepare an Affidavit of Service and have this sworn and returned to Central Office together with one copy of the legal papers, the Return Copy.

The Master or Deputy Master of the High Court will then assess that service was effected in the terms stipulated and if so will then certify that service has been carried out in conformance with the Hague Convention in respect of service of documents in Civil Matters.

Solicitors Dublin then return the Certificate of Service by Fedex or DHL to the client in the United States and is it this certificate that will be your proof of service when you go back into Federal Court in the U.S.

Should you need any assistance with any of this procedure or if you have any queries or need service carried out in Ireland do not hesitate to use the contact form on this site or call and we will revert within 12 hours guaranteed.

By Terry Gorry Google+

In contentious business a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
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