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 definitive 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-
(a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
(b) 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.
Process Serving in France
If you want to start a controversial debate in France – mention “Process Serving” to a French PI.
In the pastI have received emails with threats to sue from a lawyer (who operates a Process Serving Business in France) and from a fellow French PI who says he will report, to the gendarmes, any foreign PI caught serving documents in France. And for the latter I had only asked him for a quote to deliver a letter through the Post Box!!
I have been a PI in France for over 25 years. Please do not let anyone tell me that process serving is nothing to do with investigations!!! I act as an intermediary for French process serving. Often a simple request from a lawyer or PI ends up as a “trace” enquiry. This is because rarely are the details correct, the French address in particular. For example, post or zip codes are missed from the addresses on the documents. Often when the documents are finally delivered the subject has moved!! There are also other formalities that are required before the documents can be served which I will explain later.
Tracing in France
In France there are few databases available for searching on a person unless they own a company or are registered as employed in France. Therefore, enquiries have to be done by letter to each prefecture located in each department. If we do not know the exact address we sometimes have to search in 101 French departments.
To explain the structure, they are grouped into 22 metropolitan and five overseas regions. All of these have identical legal status whilst being integral parts of France. The departments are subdivided into 342 arrondissements, which in turn, are divided into cantons. Each canton consists of a small number of communes. I’m sure you get my drift and can hopefully see that limited information on the subject makes the search far more complicated. Understandably tracing in France is not simply a £25 search fee!
Service of Process
Service of process is the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body’s exercise of its jurisdiction over that person, so as to enable that person to respond to the proceeding before the court, body or other tribunal. This includes all the steps necessary to notify a person of the actions being taken – known as plenary actions.
Plenary actions in France are usually undertaken by the Post Office and it is simply a recorded delivery letter sent to the subject’s address.
Process serving can be a problem in France namely because the phrase “process serving” is not used in this country. Having said that, some Huissier’s are now using the phrase. Process serving is a practice that is little known in France and some other European countries.
Non UK process serving and Huissier des Justice
Process Serving, as we understand in the UK, is reserved for state Bailiffs (Huissier de Justice). In other European countries Huissier de Justice are attached to the Public Sector. Unlike the USA and Canada where this practice falls into the private sector.
The French do however use a very old expression “papier-bleu” which translated simply means “blue paper”. This I believe was originally the colour of court papers were that were served on defendants.
In parts of Europe, Canada and the United States, this procedure is ordered by the courts, relayed by lawyers and transmitted by private detectives, private “process servers” or bailiffs. In France however only “Huissiers des Justice” can issue legal documents such as trial notifications, commands, etc. A Huissier can also act as an arbitrator. It is supposed to be illegal for lawyers and licensed private investigators to serve legal documents on an individual or company in France. That said I know of at least one lawyer who advertises this service – perhaps he is not a very good lawyer or just sees a business opportunity!!!
I also know of French detectives who serve documents. However, at the end of the day there appears to be no stated case on the subject. I know of the existence of a case in relation to process serving by a French colleague but do not have the full circumstances. Neither would I want to bring his name into the public domain.
1. For service on a French national it is a requirement that the documents are translated into French. Normally it is done by a court translator but must have the official stamp of the translator. This is usually more expensive than the actual service fees.
2. For service other than a French national, a British resident for example, they may still require the documents to be translated because they need to know what is contained in them.
3. Full details of the petitioner including full name, nee name, date & place of birth, full address supported by proof in some cases, profession and sometimes passport are required.
Impersonating a Huissier
Whilst it is an offence to impersonate a Huissier, it is not common for PI’s to state to a process recipient “I am a Huissier” This is covered in the French Civil Code of which a translation is shown below: Website http://legifrance.com/ In addition there is no legal requirement in the UK for a Process Server to identify himself therefore I think it would be very difficult to prove impersonation if you say nothing !!
SECTION VII – USURPATION OF OFFICE
Ordinance no. 2000-916 of 19th September 2000 Article 3 Official Journal of 22nd September 2000 came into force the 1st January 2002
Any person acting without authority who interferes in the discharge of a public service by performing an act reserved for the holder of this office is punished by three years’ imprisonment and a fine of € 45,000.
Ordinance no. 2000-916 of 19th September 2000 Article 3 Official Journal of 22nd September 2000 came into force the 1st January 2002
A penalty of one year’s imprisonment and a fine of € 15,000 is incurred by any person who:
1. exercises an activity in conditions liable to create in the mind of the public a confusion with the discharge of a public service or an activity reserved to legal professional officers or public officers;
2. uses papers or written documents presenting a similarity to judicial or extra-judicial documents or a similarity to administrative documents, liable to cause misapprehension in the mind of the public.
I believe it will be very difficult to prove a case, especially if the process server carries a card which says “I am not a Huissier – I am a Process Server”. In fact there is no requirement in the UK for a process server to identify himself to the subject.
The Hague Convention sets out the rules relating to Process Serving abroad and a copy can be found at http://www.admiraltylawguide.com/conven/serviceabroad1965.html
CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS
(The Hague, 15 November 1965)
The procedure agreed by the treaty should theoretically be used in all signatory countries.
In France, only the Department of Justice is the central authority and declared empowered to issue legal documents. This declaration extends to overseas departments and in French Polynesia. The problem is that the procedures of the Hague Convention are very slow and some lawyers prefer to give the documents to a private process server, even though they may be in contravention to the French law. They are usually more efficient, but somewhat more expensive.
Complications that can occur when following the law to the letter!
This case was N° 33 of 2009 in the Royal Courts of Justice in London and was concerning the simple delivery of a Bankruptcy petition on a subject in the UK. Briefly, a UK Process Server attended at the debtor’s address in 2008. The debtor was not present at the address and the process server, having established from neighbours that she lived there, deposited the documents in the letter box. The debtor later claimed that she did not have a letter box even though the process server stated on oath that he had left the documents in the letter box.
The debtor subsequently moved to France and I was instructed to trace the address and serve documents. I advised the UK lawyers that I would find a Huissier which I did. The Huissier promptly visited the premises (an isolated detached house set in several acres in rural France) and in spite of taking the 2 km trek down the drive nobody answered the door. In accordance with French law the Huissier left his calling card on the letter box outside the premises. The proprietor is obliged to contact the Huissier’s office within 15 days – if they do not the documents are deemed served.
In addition service by registered letter from a French address is also deemed legal in France. I arranged service by registered post using my French office address.
The debtor did not acknowledge either of the service procedures. She said that she did not receive the documents because they were addressed wrongly even though the “post person” had marked on the envelope “Refused”? She said that the Huissier had not left any information.
I was then contacted by the lawyers and asked to arrange for personal or substituted service of the documents on the debtor. I again explained the French laws and the lawyers responded by saying “the UK judge could not give a to?? about French law and asked that I arrange the service under UK law. Who am I to refuse a judge’s demand?
I then visited the area with a French investigator and we attended the house. It was difficult to find and I went to the front door. There was a dog inside barking, two UK registered cars in the courtyard but no answer. We waited for two hours at the entrance gate and were just about to leave when a UK registered Land Rover turned into the drive. The driver was asked if he knew the debtor and replied that it was his wife or partner. The documents were simply handed through the open window of the car and he was asked if he could give them to her.
Wait for it – yet again she objected to the service saying that the man I spoke to was not her partner – that he did not speak English and then denied the guy existed. I subsequently attended the Royal Court for the second time in this case along with the first UK process server. Case proved – claim upheld !
The full case does make interesting reading however the point of this report is “who is right when it comes to the serving of process in France” In this case we had tried every possible way to serve these documents and still we had objections from the debtor, the lawyers and the Judge. Please feel free to contact me with any comments on this article, constructive or otherwise!
Statements and opinions expressed in articles, reviews and other materials herein are those of the authors; the editors and publishers.
While every care has been taken in the compilation of this information and every attempt made to present up-to-date and accurate information, I/we cannot guarantee that inaccuracies will not occur. Graham H Dooley or Anglo French research Ltd will not be held responsible for any claim, loss, damage or inconvenience caused as a result of any information within these pages or any information accessed through this site.
The information contained herein is provided for general information only and may not be accurate at the time of service in a particular case or country. Questions involving specific services should be directed to our office. Care should be exercised in choosing the method of service (formal/informal) if eventual enforcement of a judgment is anticipated in the country where the documents are to be served. No legal advice is intended in the statements contained herein. Assignments for international service of process are accepted on the basis that the assigning law firm has researched all applicable laws. Portsea International and its agents assume no liability for its actions in the course of any phase of the service of process assignment.
Portsea International formerly Anglo French Research now specialising in France, UK and Sierra Leone and Spain.We need to make sure our clients are who they say they are, that their motives are legally based and that they have a right to know what they asking us to learn for them. Having this standard can only improve our profession.