Service Regulation and Taking of Evidence Regulation will cease to apply post-Brexit

The post below was first published on our Litigation blog

The government has published a draft statutory instrument, the Service of Documents and Taking of Evidence in Civil and Commercial Matters (Revocation and Saving Provisions) (EU Exit) Regulations 2018, which will mean that the EU Service Regulation (1393/2007) and Taking of Evidence Regulation (1206/2001) no longer apply to the UK when it leaves the EU.

The measure is needed to prevent these regulations, which cannot operate effectively without reciprocity between the UK and the EU27, becoming part of UK law under the European Union (Withdrawal) Act 2018. That Act provides that direct EU legislation (including EU Regulations) which is operative immediately before exit day forms part of domestic law on and after exit day. Without this statutory instrument, therefore, the Service Regulation and Taking of Evidence Regulation would be incorporated into UK law from that point.

The statutory instrument contains transitional provisions which mean that the two Regulations will continue to apply to outstanding requests for documents to be served or evidence to be taken in the UK, where those requests were received in the UK before exit day.

After Brexit, the procedures for service of documents and taking of evidence between the UK and the remaining EU Member States will mainly depend on whether those Member States are, like the UK, contracting states to:

• the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention); and/or
• the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention).

All remaining EU Member States other than Austria are contracting states to the Hague Service Convention and all but Austria, Belgium and Ireland are contracting states to the Hague Evidence Convention. Where those conventions apply they will give alternative routes for service and/or the taking of evidence across borders.

In relation to service, and depending on the country in question, there may be other methods available either in addition or as an alternative to the Hague Service Convention route. These may include service through consular authorities, or by post, or by any method permitted by the law of the country in which service is to be effected.

In relation to the taking of evidence, where the Hague Evidence Convention does not apply, it may still be possible to proceed via a letter of request even where there is no treaty relationship dealing with the taking of evidence.

Overall, the procedures may be somewhat more cumbersome than at present, but it should remain possible to serve documents and take evidence in EU member states for the purposes of English proceedings even after Brexit.