The service of proceedings or any legal services is bound by regulations and rules of the issuing court or body. To all lawyers these rules in their home jurisdictions will be known if not on detail but in general terms according to the jurisdiction. Rules will cover such things as method of service; times for filing defense and objections, response to proceedings and even entering judgment in default or an answer by default.
In our experience, and we have come across this a number of times in recent months, is how lawyers and practitioners blindly act as though all other jurisdictions will follow the rules of the issuing country and act as if those rules, those of the issuing jurisdiction will apply. If other local rules do apply, then these will be adapted to suit the foreign plaintiff. Unfortunately, this is not the case.
We are often asked to remedy defects both in the form of the proceedings and the time limits imposed by the local courts and the rules. For example, Romanian lawyers believe that because the rules of service in the issuing jurisdiction impose different procedural rules of service and capacity in the jurisdiction of where the defendant is situated these the local rules can be ignored or brushed aside.
The EU has tried to go some way to try and ensure uniformity of service and enforcement of decisions, but still local regulations and laws must be observed. It is important from the EU perspective to ensure that certificates and evidence and statements of law are properly followed to allow the proceedings to be served or enforced in a foreign jurisdiction. From the UK perspective should the United Kingdom leave the EU without an agreement then the old rules regarding service outside the jurisdiction and enforcement of a judgement and collections of judgement debts will apply.
The same rules will apply in an inverse manner to a Romanian judgement and orders that will have to be served and enforced in the United Kingdom. It should be remembered that the rules in England and Wales can be very different from those of Scotland and Northern Ireland and that there is no uniform service procedure. These rules and practice can and do produce different legal advice to clients both regarding service and enforcement.
The recent decision of the Court of Appeal (Al-Zahra (RVT) Hospital & Ors -v- DDM) in the London has only reinforced the inherent jurisdiction of all courts in their procedures and requirements. The courts will not waive the requirements of the foreign jurisdiction even if such rules are contrary to rules and practice in the issuing jurisdiction.
This decision only enforces the need for any practioner who is contemplating proceedings against a third party in a foreign jurisdiction to consult and get clear advice on both the procedure for serving such proceedings in the foreign jurisdiction as well as the conduct of such proceedings and whether the foreign courts will interfere in such proceedings and even disallow them as well as enforcing any judgement.
The expense and costs involved in obtaining this information and advice before issuing the proceedings will be far less than the costs and expences incurred in rectifying a procedural defect and in some cases may be fatal to the action. From experience our advice is understand the procedural issues in Romania and do not expect things to work as they may do in a common law country. Civil law jurisprudence can be very different from the Common law and produce nasty surprises. Proper preparation before the issue and service of proceedings can only benefit the client.