Cross-border disputes and COVID-19: Service of proceedings abroad during and following the pandemic

International service of proceedings is tricky, even in the best of times.  It is generally desirable to effect service using a means which is both legally valid and as time/cost efficient as possible.
The more formal routes provide more certainty, but service can take considerable time to be completed.  Less formal routes may be available, but their use demands more scrutiny when assessing their legitimacy, and so can increase the risk of a legal challenge:

• in the forum in which the proceedings take place – thereby in fact adding to the delay of the progress of the proceedings and also increasing cost; and/or
• in a country in which the defendant or its assets are based – thereby potentially rendering any judgment obtained unenforceable there.

Speed is usually important from a commercial perspective.  However, certainty might be vital for legal reasons (for example, to ensure that the applicable limitation period for the claim is not exceeded), and the use of formal routes can sometimes prove to be the quicker and cheaper option overall.  That said, there are instances in which speed of transmission is of the essence such that the use of formal channels will render the proceedings ineffective.

Consequently, it is crucial to assess these issues carefully before deciding what approach to take in the particular circumstances at hand.

During a global pandemic however, the factors in play are even more complex:

• The more formal channels for serving proceedings might not be operating, and so claimants/plaintiffs may be more inclined to explore whether other means might be available.  However, any such alternative means must bear up to legal scrutiny, and they may present, in any event, their own challenges as regards procedure, practicality or timing.
• Further, at a time when it may be more difficult to meet payment or other contractual obligations to other parties, and/or properly to assess the merits of adverse claims and/or to arrange, manage or fund a defence, defendants may be:
  • less inclined to make service on them easy to effect (for example, by authorising their lawyers to accept service on their behalf);
  • more likely to contest the validity of the means or method of transmission and delivery utilised.

Even once the global pandemic has sufficiently subsided – in the country in which proceedings have commenced and/or the country in which they are to be served – such that normal channels can resume their operations, service is still likely to take longer than usual in view of the likely backlog of requests and continuing issues of practicality.  As such, the effects of COVID-19 on this issue, and its importance, will continue for some time to come.

The note which can be accessed via the link below highlights some of the issues arising, and considers the options available, in respect of:

• the service abroad of proceedings in the Courts of England and Wales; and
• the service in England and Wales of foreign proceedings.

It also provides some commercial and practical guidance in this regard during these difficult times.