Response to the modernisation of judicial cooperation in civil and commercial matters in the EU
Resolution’s International Committee members are involved in cross border judicial proceedings on a professional level as legal representatives both in matters in which a document has to be served across borders and in which evidence has to be obtained from a member State different from the State of the proceedings.
Resolution agrees that, with the advancement of communications technology in recent years, it is right that the EU should review procedural laws, including those relating to international service of process and transnational evidence. Members consider the Service Regulation to be an important instrument, especially as it provides a clear structure for securing jurisdiction under the Brussels II Revised Regulation. Members have not had as much experience of using the Evidence Regulation so our comments about that are not as comprehensive.
The language in which Question 5 is drafted caused us some difficulty because we take the view that the concept of a party’s “address” and “residence” needs to be reviewed in the age of email and
social media. Consideration should be given to allowing email service, or service on social media platforms such as Facebook, subject of course to rights of challenge in individual cases. We would be disappointed if Member States sought to “protect” residents or citizens within their territorial boundaries from service of process in family law proceedings where the interests of children are
often the court’s paramount consideration.
There are other issues which Resolution considers that the EU ought to examine in its review of the Service Regulation. For example:
1. Some receiving agencies are slow to act and are taking longer than the one-month deadline in Article 7 to effect service or report non-service. One solution might be to allow an alternative course when the receiving agency does not respond within the month, for example, by allowing the transmitting agency to by-pass the receiving agency and serve the respondent by direct service.
2. The translation Articles, 5 and 8, are open to abuse by uncooperative respondents. There are no penalties or consequences for a respondent who refuses service just to delay the process, and no test of translation accuracy or of the respondent’s language proficiency. Part of the solution could be to amend Article 5 to compel the transmitting agency to provide a certified or notarised translation at the same time that the original documents are sent to the receiving agency. There would then be no need to provide for the option in Article 8 because there would always be an accurate translation. The only question then would be the credibility of the respondent’s assertion that he or she did not understand. That is a question of fact that could be assessed by the issuing court as a preliminary procedural issue, on the application of the respondent. In other words, a presumption of effective service with the right to challenge the presumption on application to the court.
Resolution members are strongly attracted to the idea of allowing, as a general rule in appropriate cases, international service by email, by social media posting such as on Facebook, and by other digital means. Where respondents clearly have an active email address or other digital presence the savings in time and money of digital service would be significant.
An example of the English court allowing email service to overcome a respondent’s obstructive litigation behaviour is provided by the recent child maintenance case of Wilmot v Maughan  EWCA Civ 1668, decided by the Court of Appeal on 27 October 2017. After 23 court hearings it was finally decided that email service on the father at his English email address was valid under English domestic law, even though he claimed not to be resident in England. The previous court hearings had reviewed the 1965 Hague Service Convention because of the father’s assertion that he lived in Turkey. The Court of Appeal held that the Hague Service Convention did not need to be invoked because the father had demonstrated “continuing connections” with the English jurisdiction, and therefore English domestic rules about email service applied. Although the EU Service Regulation was not engaged in this Hague case the analysis of the Court of Appeal in assessing the father’s “continuing connections” to England would presumably apply equally in a “Regulation” case.
The unanimous judgment of the Court of Appeal can be read at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1668.html
In the more recent case of Barton v Wright Hassell  UKSC 12, the United Kingdom Supreme Court decided on 21 February 2018, by a majority of 3/2, that email service under domestic English law was invalid. Although international service procedures were not engaged, the different views of the judges in this case may assist the EU in considering its review of international service of process pursuant to the EU Service Regulation.
The majority and minority Supreme Court judgments can be read at: https://www.supremecourt.uk/cases/docs/uksc-2016-0136-judgment.pdf