Even everyday defendants can go to incredible lengths to avoid service of proceedings – but serving a well-protected subject can bring its own, unique, challenges. With the question of whether Prince Andrew was validly served with Virginia Giuffre’s proceedings still very much in the news, Oliver Cox writes for the Law Society Gazette on process serving methodology for the Royals and other high profile individuals.
The full version of the article is set out below.
The recent press speculation over possible service of legal proceedings on Prince Andrew, Duke of York has thrown the question of service into the spotlight. On Saturday, 11 September, specialist law firms around London (including mine) were receiving frantic calls from journalists asking one simple question – has Andrew been validly served or not? It was no doubt frustrating for those journalists to receive, in response, what appear to have been carefully worded variations on the same answer: “well, it depends…”.
How do you serve a prince?
Getting service right is easy 99% of the time and hellishly difficult for the other 1%. Every litigator will have at least one story of the outlandish lengths individuals (particularly litigants in person, with a misguided idea of the importance of personal service) have taken to seek to avoid service. Most problems arise where the person is anonymous or simply hard to find. But problems also arise in where the opposite is true – against the ultra-rich and politically powerful, who can and do take special steps to avoid service. How does a practitioner approach service if the target of proceedings is not simply hiding behind their sofa, but instead behind multiple potential “usual residences”, in multiple jurisdictions, some of which may literally be castles? What if the person answering the door to the process server is in fact a Protection Command policeman – or, more concerningly, a former member of Russian special forces?
First, to dispel one myth, it is perfectly possible to serve proceedings on members of the Royal Family. They are famously averse to court appearances (a legacy, supposedly, of the future Edward VII scandalously appearing as a witness in two civil cases in 1870 and 1891, concerning adultery and slander respectively). But in 2002 Princess Anne was summonsed to appear before a Slough magistrate after one of her dogs attacked a person in Windsor Great Park (she duly appeared, pleaded guilty and was fined £500).
For comparison, though, it was service problems that led to the farcical scenes in London’s Sloane Street in 2007 involving two of the world’s richest men. Lawyers acting for Boris Berezovsky, formerly one of the most powerful men in Russia, had been trying to serve his former business partner Roman Abramovich for several months, without success – but then (according to Berezovsky’s account) he one day unexpectedly encountered the Chelsea FC owner himself, not forty yards away. Sending a bodyguard to fetch a copy of the proceedings from his car, Berezovsky himself then tried to stuff the papers inside Abramovich’s jacket. “I’ve got a present for you” he’s even reported to have said. As Abramovich recoiled, Berezovsky dropped the writ at Abramovich’s feet. Such dramatic recourse to personal service, after months of delay, illustrates the difficulty in serving proceedings upon the well-protected.
So if the writ wasn’t given to Andrew in person, was he properly served?
The short answer is that, with proper planning, such dramatic and personal steps are generally increasingly unnecessary, even when faced with individuals who can take elaborate steps to avoid service. It should also be remembered that, if dealing with sophisticated and well-advised individuals, such measures are now more often short-term delaying tactics rather than a strategy, and their possible reason for delaying or questioning service should be considered – not least for when it comes to enforcement. We can then analyse the recent events at Windsor.
- For English proceedings generally, service by an alternative method pursuant to CPR 6.15 has gained popularity. In the current age of Covid-19, service by electronic means has both become more routine and holds several obvious attractions. It requires an application, and therefore adds to the timescale and the costs, but it is easier than ever to serve proceedings by email, or even (exceptionally) Facebook (AKO Capital LLP & Another v TFS Derivatives & Others , unreported), Twitter (Blaney v Persons Unknown , unreported), WhatsApp (Gray v Hurley  EWHC 1636 (QB)) or even text message (NPV v QEL and another  EWHC 703 (QB)).
- On the specific question of Prince Andrew, though, there is an extra element: the proceedings brought by Mrs Virginia Giuffre, to which Prince Andrew may or may not be subject, are New York proceedings – so it follows that the key question is not whether the service was compliant with English law but with New York law. New York law ordinarily has no qualms about riding roughshod over local service law; however, both the UK and the US are signatories of the Hague Service Convention (the “Convention”) – so the question is whether the Prince has been properly served according to the Convention in the eyes of the New York judge.
- What actually happened, according to media reporting of a filed affidavit in New York, was that on 27 August a process server, Cesar Augusto Sepulveda, left an A4 envelope containing the proceedings in with an on-duty Metropolitan Police officer at the Royal Lodge, Windsor (Prince Andrew’s English residence), after being told that meeting with the prince would be impossible: the policeman may have said by leaving the papers there, they would be forwarded on to the legal team. Reports from New York suggest that the claimant’s lawyers, duly told the judge that the proceedings were “delivered to the last known address of the defendant” and also stated that the documents had also been sent “by Royal Mail”; reports overnight (at time of writing) also suggest that the English High Court has accepted a request to serve Prince Andrew.
- The most relied-upon method of serving US proceedings into England & Wales via the Convention is through the designated “Central Authority”: the Senior Master of the High Court Queen’s Bench Division. Even though it takes many months, this is the favoured method for many litigants/their advisors because it is low-risk: assuming the process is followed correctly, it is virtually impossible for a defendant to challenge the validity of service effected by the High Court itself. As noted, the latest reports suggest that the claimant’s lawyers have pursued this method in addition to other options (discussed below) – but Prince Andrew has not been served by this method yet.
- Article 10 of the Convention also permits service by alternative methods – Article 10(a) permits service by post, and 10(b) permits using “other competent persons” for service. Article 10 is preferred where litigants want to move faster – but it has pitfalls.
- Mrs Giuffre’s English solicitors sending documents “by Royal Mail” should, alone, be enough for compliance with local law (i.e. that of England & Wales): Rule 6.3(1)(b) of the Civil Procedure Rules for England & Wales (the “CPR”) permits “first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A”, and it is posting rather than delivery which matters (CPR 7.5(1)). However, it is worth noting that US federal and some state court rules require service by mail to evidence a “signed receipt”. If this applies to the New York proceedings, evidencing a signature may be difficult – as of March 2020, Royal Mail has stopped collecting personal signatures on signed-for deliveries, due to Covid-19.
- Service by “other competent persons” should be simple, since in England & Wales this includes both solicitors and process servers instructed by those solicitors. So long as the process server was instructed by English solicitors rather than direct from the US, there should not be a problem. CPR 6.3(1)(c) permits “leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10” as valid service, and CPR 6.9 (“Service of the claim form where the defendant does not give an address at which the defendant may be served”) orders service of individuals at their “usual or last known residence”. This is what was being referred to in the New York court when the lawyer said proceedings were “delivered to the last known address of the defendant”. There are points to be taken, but it is doubtful whether they might succeed:
- media reports suggest that Prince Andrew is currently at Balmoral, and has been there for some time:
- It might be argued that Royal Lodge was not his “usual or last known residence” for the purpose of English procedure. However, that would appear to be misleading: it is possible for one person to have more than one “usual or last known residence” (Relfo Ltd (in liquidation) v Varsani  EWHC 2297 (Ch)) and the critical test is of the addressee’s “pattern of life” (id.  EWCA Civ 560). Media reports suggest that Prince Andrew is most often resident at Windsor and has recently only made intermittent extended visits to Balmoral (uncharitable reporting connects those visits with key periods in this developing litigation).
- The fact that the Prince is in Scotland specifically (a different jurisdiction to England & Wales) is another potential line of argument, since he was self-evidently out of this jurisdiction at the time of service. This point has been taken before – see Kamali v City and Country Properties Ltd  EWCA Civ 1879;  1 W.L.R. 1842, CA. The consistent pattern to Prince Andrew’s movements suggest that this may be an argument which his advisors do intend to run. However, the prevailing post-CPR opinion seems to be that if a defendant is “resident” in the jurisdiction then they are “subject” to the jurisdiction and therefore formally “present”– even if they are physically temporarily absent. In the Kamali case, Lord Justice Neuberger noted with approval (at 28) Lord Brightman in Barclays Bank of Swaziland Ltd v Hahn  1 WLR 506, at 510G, describing as an “absurdity” the notion that the validity of service on an inhabitant of northern Cumbria who went to Scotland for lunch could depend on the time he left for, or returned from, lunch.
- It might also be argued that in giving the documents to the policeman outside Royal Lodge, the process server erred, because it was not left “at” the place, and with the Metropolitan Police rather than the Prince’s own people. Such a point can only be said to be both doubtful at best and inevitably highly fact-sensitive, depending as it does upon the position, movements, words and actions of the officer in question.
- media reports suggest that Prince Andrew is currently at Balmoral, and has been there for some time:
So has he been served or not?
Even though there has been no dramatic personal service confrontation (in the Berezovsky style or otherwise), if the US and English lawyers have done their work properly it will be difficult for Prince Andrew’s legal team to argue he has not been served – but this may not stop them trying. Twelve years ago the Court of Appeal in Relfo noted (obiter) “doubts” within CPR 6.9 and suggested it would be desirable for the CPR Committee to review it.
It must be emphasised, however, that the final decision on whether the Prince has been validly served lies in the hands of the New York judge. Judges generally take a dim view of service games, such as instructing solicitors not to accept service. Where there can be no doubt whatsoever of Prince Andrew’s knowledge of the existence of these proceedings and of the fact of attempted service (not least due to it being splashed across the English media), and where Mrs Giuffre’s lawyers have plainly adopted a “belt and braces” approach in seeking to notify by all available means, the New York judge may have very little patience for delaying the proceedings over procedural question-marks – most particularly where certain service through the English High Court appears imminent in any event.
Hamlet, Act V, Scene II
LAERTES He is justly served;
It is a poison temper’d by himself.
- The abridged article published in the Law Society Gazette is here.