Process agent

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Negotiation Anatomy

Rule 6.11, Rules of Civil Procedure

6.11
(1) Where –

(a) a contract contains a term providing that, in the event of a claim being started in relation to the contract, the claim form may be served by a method or at a place specified in the contract; and
(b) a claim solely in respect of that contract is started,

the claim form may, subject to paragraph (2), be served on the defendant by the method or at the place specified in the contract.
(2) Where in accordance with the contract the claim form is to be served out of the jurisdiction, it may be served –

(a) if permission to serve it out of the jurisdiction has been granted under rule 6.36; or
(b) without permission under rule 6.32 or 6.33.

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A process agent, for an agreement subject to the jurisdiction the courts of England and Wales, is an agent located in England or Wales (or, in theory, their adjacent territorial waters) who accepts service of legal proceedings filed in those courts for someone who is not in England or Wales — technically, who has no permanent place of business here.

The rules of English civil court procedure[1] requires a claim (in the trade called “process”) brought before an English (or Welsh) court to be physically served on the defendant in England or Wales (or, at the limit, in their adjacent territorial waters).[2] Service in Scotland — or its territorial waters — will not do. This means you can serve process on someone rowing a boat in the Bristol Channel, but not in Inverness, much less on someone escaping in rowing a boat to, for example, the Isle of Skye.

This means if you have a contract with a counterparty who has no place of business in England or Wales (or their territorial waters), it will need to appoint a process agent on whom you can serve court papers should, heaven forfend, you need to.

Jurisdiction, not governing law

Point for details freaks: it is the jurisdiction of the English courts and not English governing law law that matters. A contract governed by Swiss law but subject to the jurisdiction of the English courts[3] would still need an English or Welsh process agent. In theory — and, yes, a ripe theory it would be — a contract governed by English law but subject to the exclusive jurisdiction of Italian courts[4] would not.

This also means that an agreement subject to some ghastly foreign law and the non-exclusive jurisdiction of some ghastly foreign courts, and which therefore could, in theory, come before an English or Welsh court, would require a process agent in England, Wales, or their territorial waters for that to happen. This would look most odd in the negotiation process. The JC hereby offers a free bag of sweeties to the first person who can show they have successfully inserted the appointment of an English process agent into a foreign law agreement for this reason.[5]

The agent doesn’t have to agree to it, or pass any papers on

Now here’s an interesting thing. Having contractually agreed your “method or place” for service, as long as the plaintiff can prove it complied with it,[6] the court will not enquire whether the claim, duly served, ever found its way to the actual defendant. The view being the defendant assumed the risk of its process agent being competent enough to forward on the correspondence, in the same way a local defendant assumes the risk of its receptionist neglecting to pass the package to its legal eagles. So the painful strictures in process agent boilerplate dealing with replacement or succession of agents are not entirely necessary. If the contract provides it may be served “by delivering it to the first person you meet at Waterloo station at 9am” — even, I like to think, by “impaling it on Boadicea’s sword on the Victoria Embankment in the presence of one or more tourists”, then that is what you must do, and no more.

This is, by the way, no more than an articulation of the basic rules of agency: the agent represent the principal: what I give to an agent, I have given to the principal as far as I am concerned.

Who needs one?

Any counterparty who does not have a permanent place of business in England or Wales. Or their adjacent territorial waters. Process agents are standard in English law contracts with overseas counterparties.

How do I get a one?

Many corporate trust and agency businesses act as process agents, although they charge outrageously for the service. Law firms used to do it, but they charged even more, and even then complained they couldn’t make any money out of it.

If you have an affiliate, agent or investment manager or buddy in England or Wales, best ask them if they will accept service on your behalf.

It would make a great play

It would be kind of cool to set up a process agency business on a barge moored in the Bristol Channel, just to make service on that process agent as hard as is humanly possible, and potentially impossible if a great storm blew in from the Atlantic on the last day of the statute of limitations. Would make a great play. Actually, now you mention it - The ISDA Protocol.

Careful with the territorial waters

If your process agent is moored on a barge — say, off the coast of Berwick-upon-Tweed — then depending on the prevailing current, you may or may not be able to service process there.

A process agent in New York?

The last time we checked[7] New York rules of civil procedure do not require service of process within the state of New York, nor even her territorial waters. Your process service guy can travel far and wide, serving the miscreant in whichever jurisdiction he may find an authorised representative to whom he can hand the papers. As long as he trots back and files an affidavit of service in the New York court, that will do. Therefore — however much money CT Corporation may reap persuading its offshore clients otherwise — foreigners conducting their affairs under the laws of the state of New York need not appoint a NY process agent.

See also

References

  1. Rule 6.11 of Part 6, details freaks.
  2. In the Civil Procedure Rules the “jurisdiction” is defined as “unless the context requires otherwise, England and Wales and any part of the territorial waters of the United Kingdom adjoining England and Wales” so, therefore, those of the Her Majesty’s territorial waters which adjoin Scotland or Northern Ireland are out of bounds.
  3. This sounds ridiculous, I know, but it does happen. The JC has personal direct experience.
  4. This sounds ridiculous, I know, and is ridiculous. The JC has no personal direct experience of this (and does not want any, so you can save your postcards).
  5. Up to fifty new pence in value, postage and packing excepted. Judge’s decision final is arbitrary, crotchety, and no correspondence will be entered into unless he feels like it, which he probably will. Competition not open to friends, relations or acquaintances of the JC.
  6. It will do this by having its process server swear an affidavit of service.
  7. We don’t check all that often folks, so on your head be it.