The vagaries of the local Legal system mean that process service of English legal documents is expensive and cost-prohibitive. Consequently, it is often cheaper, if the documents are sourced in a UK court, for one of our process servers to travel from England to effect service, a matter we have conducted in Monaco, Paris, Calais and other towns.
We have actioned service in Monaco of documents originating in an English court by personal service by an English Process Server. While not necessarily the cheapest option, it is much more effective and time consuming
We have effected many legal serves abroad and, to date, have always been successful however on most occasions we have had the benefit of flexibility
Our time is charged at our standard Process Serving rate, subject to a £5.00 / hour supplement when working abroad. All pricing is exclusive of VAT and these costs are a guide only
We would suggest, when serving documents, to allow time for potential information errors – this also occurred in Monaco very recently when it transpired the Respondent had moved not only his job but also his residence. While it was a single day trip, it was a close run thing by the time he had been tracked down and the luxury of having some reserve time would have been appreciated – this is, however, reflective in budget
Notes on Process Service in Monaco:
Monaco is a member of The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 UST361
The service of process and orders in Monaco is normally done through a quasi-court official called a huissier. An English translation of this term might be bailiff, marshal, or sheriff. There are two huissiers in Monaco. Both are very busy because they also perform other judicial and quasi-judicial functions in addition to serving process. In addition to the procedures described below, papers can also be served through diplomatic channels, but this is a very lengthy process
Neither huissier in Monaco is generally willing to serve papers that are in a language other than French, unless they are accompanied by a French translation. This includes exhibits to papers, including, news paper articles, etc. This is an important requirement because, even if a huissier would entertain serving non-French language documents, the person served could seek to have service voided in a Monaco court because the papers served were not accompanied by a French translation. This could cause problems later on, when trying to enforce a judgment in Monaco based on the defective service. A translation by a professional translator would seem advisable
The papers to be served, including proper translations into the French language, must be presented to a huissier at the request of a resident of Monaco. Otherwise, the huissier may refuse to accept them and will direct the party seeking service to submit the papers through diplomatic channels. Upon receipt of properly delivered papers, the huissier will attempt to deliver those papers to the person to be served. If that person can not be found because of absence or other reason (but not because the person is unknown in Monaco or has departed Monaco), the huissier will deposit the papers with the Mairie and send the person to be served a registered letter informing him of the deposit. Either method constitutes personal service under Monaco law. The huissier will then provide a report in French describing the service. Normally, the huissier will not sign foreign forms of affidavits of service
The 15 November 1965 Hague Convention on Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters sets several options for service of process. So does EC Regulation 1393/2007. These options include, inter-alia:
Service through Central Authority;
Direct service through local process server;
Service through Central Authority
The Hague Convention's public channel is time-consuming, since it is processed through the Government's Administration. No option for expedited service exists. The Public Service channel is free of charge and has no taxes, but you must arrange for the paperwork to be translated into French, pay a Court bailiff's fees and any other disbursements, including Value Added Tax. The contents of your documents is inspected by a French State's representative for legality and conformity to internal laws and therefore your paperwork is not kept strictly confidential.
If using the centralised channel, one must bear in mind that all documents are, in principle, to be translated into French by a Certified Court translator. Pursuant to article 5 of the Convention, if the documents being served are not translated, service can be denied. In addition, it is common for the Defendant to be given the option of refusing service due to lack of translation and, in that instance, documents would not be served. Documents must be accepted voluntarily by the defendant or your efforts will be lost.
Direct service is preferable, because it is faster, usually less expensive (it does not requires translation as expressly allowed by Article 688.6 of the New Code of Civil Procedure), the documents will not be submitted to inspection by French Judicial authorities and will be kept confidential
When a corporation or physical person located outside or within Western Europe (the "Non-French Plaintiff") contemplates bring a legal action again a corporation or physical person located in France (the "French Defendant"), legal counsel of the Non-French Plaintiff will need to advise his client as the relative advantages and disadvantages of bringing the action outside France or in France.
Assuming that the decision is made to commence the proceeding before a court located outside France, it is important that service of process be effected in France a timely manner to avoid an issue of litis pendence.
The purpose of this note is to assist non-French legal counsel for a Non-French Plaintiff in avoiding certain common pitfalls with respect to service of process in France.
Service of Process Options
The November 15, 1965 Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters should be reviewed with care. Article 5 of the convention sets forth the non-exhaustive options for service of process:
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either-
by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to subparagraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.
If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.
Even if service is to be effected through a "Central Authority", the summary referred to in the last paragraph of Article 5 should not be overlooked. Attached is bi-lingual (English/French) summary to be completed in both English and French when using the Central Authority for service in France . An example of a completed bi-lingual (English/French) summary used when serving a defendant in the United States is also available ().
While the Hague Convention permits service by government-to-government, Article 5 (b) permits service of process in the manner proscribed in the the laws of the country where service is to be effected. As any Central Authority (government-to-government) services are generally slow and and the feedback even slower, it is may be prudent to effect service of the papers in France using a French huissier (a French bailiff).
Unless legal counsel of the Non-French Plaintiff is accustomed to selecting and working with French huissiers (French bailiffs), the use of local French counsel may be a justified added expense.
Article 10 of the November 15, 1965 Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters provides a second, non-exclusive option for service of process:
Provided the State of destination does not object, the present Convention shall not interfere with -
the freedom to send judicial documents, by postal channels, directly to persons abroad,
the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
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 State of destination
Thus, it is possible to use an English process server without using the services of the Central Authority. This second alternative permits off-shore lead counsel and such counsel's local French counsel to avoid a number of potential defects in service of process in France which may otherwise go unidentified until exequatur is sought may years and tens of thousands of Dollars/Pounds later.
Language of Documents and Translations
Assuming that the original summons is not in French, it is recommended that a translation be attached, as the French Defendant may otherwise successfully claim that the service was not valid by invoking the terms of Article 688-6 of the French "Code of Civil Procedure".
Nouveau Code de Procedure Civile
L'acte est notifié dans la langue de l'Etat d'origine.
Toutefois le destinataire qui ne connaît pas la langue dans laquelle l'acte est établi peut en refuser la notification et demander que celui-ci soit traduit ou accompagné d'une traduction en langue française, la diligence et aux frais de la partie requérante.
Code of Civil Procedure Article 688-6
The process shall be notified in the language of the originating State.
Notwithstanding the above, the addressee who does not know the language in which the process is drawn may refuse the notification thereof and ask that it be translated or be subjoined with a translation in the French language at the instance and at the expense of the petitioner.
Avoiding Exequatur Problems
The ultimate favourable results in international litigation and also in settlement negotiations are often determined by successful, judicious forum shopping.
Non-French legal counsel for a Non-French Plaintiff should not assume that selecting a non-French judicial forum will lead to the best result, as, inter alia, French courts may, by application of French internal law, refuse to enforce (grant exequatur of) certain foreign final and executory judgments. Accordingly, if the prospective defendant is French, the choice of forum issue should normally be discussed with French counsel.
Avoiding Litis Pendence Problems
Once the informed decision is reached to select a non-French judicial forum will lead to the best result, it is important that the French defendant be validly served first. Failure to effect valid service on the first try could offer the French defendant the possibility of serving the Non-French Plaintiff "first" and thereby creating a situation of litis pendence in France, thereby possibly denying the Non-French Plaintiff the home court advantage which his counsel deemed preferable.
Procedures Followed by French Bailiffs when Effecting Service of Process
French bailiffs (huissiers de justice) have a statutory monopoly on the right to effect service of process in France.
When a local bailiff serves a summon notifying a person or a corporation in France that he/it has been sued in France or in another county, such process process server must follow certain statutory requirement. The most important statutory provision are set forth in Articles 648 - 659 of the Code of Civil Procedure ("CPC").
N.B.: When preparing a summons to be served in France, counsel should read with care Articles 648 of the CPC as it lists certain information which should be contained in the summons.
Hague Forms. The Hague Service Convention provides that a set of three model forms ("Request," "Certificate," "Summary of the Document to be Served,") and one recommended form ("Notice") must accompany the documents to be served. These forms are designed to summarize the key contents of the court documents and guide the defendant to the appropriate action.
Methods of Service
French law provides for several types of service:
Simple notice ("notification") effected by a policeman, gendarme or mailman, requiring voluntary acceptance by defendant
Personal service by a court bailiff ("signification")
Service by registered mail return receipt requested, effected by a clerk of the court
Service by insertion into a mailbox with a notice of visit
Service by leaving a summons on defendant's door or in his mailbox warning that documents must be retrieved by defendant from court office or town hall
Various forms of substituted service, including service upon a family member, concierge or neighbour
Service by publication (not generally employed by the Central Authority)
At present, service of foreign pleadings by fax or e-mail is not valid.
Caveat: Certain types of substituted service and mailbox service which are routinely effected under French law may be deemed insufficient under UK law.
Who effects service: a court bailiff ("huissier de justice"), clerk of the court ("greffe"), policeman, gendarme, or postman (depending upon the method of service employed).
Service through the alternative channels
France has filed the following declarations with respect to the alternative channels of Hague service:
Articles 8 and 9:
With regard to direct service upon nationals of the requesting state or direct service (without compulsion) upon nationals of the destination state via diplomatic or consular agent:
France objects to service in its territory by foreign agents upon French nationals. France does not object to service by foreign agents upon nationals of the diplomat's own state.
With regard to direct service by postal channel:
France does not object to service by postal channel.
Caveat: Mail service pursuant to the Hague Service Convention is fraught with problems, including potential problems with later enforcement of UK judgments in the destination state-even when the destination state has not objected to such service. UK courts are also split regarding propriety of mail service under the Convention. UK plaintiffs are advised to proceed with caution when employing this channel.
Articles 10(b) and (c):
With regard to direct service by a judicial officer, official or other competent person of the destination state:
France does not object to service by judicial officer. The judicial officer is the resident bailiff of the court or process server of first instance in whose jurisdiction the defendant is domiciled.
Caveat: "Judicial officer," "official" or "competent person" are terms defined under the laws of the destination state, not under the laws of the requesting state. In France, private process service is unknown, and only "huissiers de justice"(court bailiffs) are empowered to serve process pursuant to Article 10. French attorneys (other than "huissiers"), detectives, policemen or private persons are not so empowered and service effected by such persons is improper. (For further information, see Service by Judicial Officers.)
In the absence of a declaration to the contrary, France has asserted that the Hague Service Convention applies to the entire territory of the French Republic. Consequently, in addition to Metropolitan France and its Overseas Departments (French Guyana, Guadeloupe, Reunion and Martinique), France has extended the Hague Service Convention to all other French overseas territories