Situations exist where a judicial document addressed to a person based abroad may be communicated to a lawyer representing that person in the forum State, instead of being served abroad on the addressee himself or herself. This usually applies to service occurring after the act instituting the proceedings has been served on the defendant in conformity with either the Service Regulation or the Hague Service Convention.
In fact, the described situation may also arise in the framework of proceedings brought by a foreign claimant against a defendant based in the forum. In this case, the defendant may reasonably presume that the lawyer signing the claim on behalf of the foreign litigant is eligible for receiving documents related to the case.
While the latter assumption would generally seem to be accurate, the admissibility of service on the lawyer depends on the kind of documents that the latter is in fact allowed to receive on behalf of the client.
In 2019, the Greek Supreme Court issued an interesting ruling on the matter.
After longstanding business collaboration between a Greek company and a Finnish telecommunications giant, a decade of confrontation began in 2010. In a series of proceedings, the parties fought through all court instances.
The first stage was a successful application for a freezing order filed by the Finnish company. An actio pauliana was filed in parallel by the same company, which was dismissed by the Athens Court of First Instance. The appeal lodged by the Finnish company, instead was successful. The losing party filed cassation against the Athens Court of Appeal ruling.
Almost at the same time, the Greek company lodged an application to reverse the freezing order, which was filed to the Supreme Court, in accordance with domestic Civil Procedure Rules (Article 698 of the Code of Civil Procedure).
As in previous stages of the litigation, the document was served on the lawyer representing the Finnish company. The latter did not appear in the hearing.
The Supreme Court ruled that the application was inadmissible because it was not served on a lawyer instructed by the foreign company to accept service on its behalf at a business address within the jurisdiction [Supreme Court Nr. 470/2019, unreported]. The reasoning of the court may be summarised as follows:
- Proper indirect service (in the case at hand, service to a lawyer representing a party), must be demonstrated by the party instructing the process server to deliver the document in this fashion.
- Pursuant to Greek law, a foreign party may appoint a representative ad litem in the following ways: by a declaration addressed to the clerks of the Athens Court of First Instance; by a specific clause in a contract; by appointing a lawyer as a representative ad litem pursuant to Article 96 of the Greek Code of Civil Procedure [i.e. orally before the court and prior to the hearing, or in written by means of a private power of attorney, upon the condition that the signature has been certified by a public authority or another attorney at law].
- Pursuant to Article 143(4) of the Code of Civil Procedure, all documents addressed to a foreign party must be served on the representative ad litem, if properly appointed, provided they fall within the set of cases covered by the power of attorney for the purpose of service.
- The Supreme Court found, however, that the application by the appellant to reverse the freezing order before the Court itself was not related to the set of cases for which the lawyer of the Finnish company was appointed. In particular, the lawyer’s appointment concerned the main dispute (which reached the Supreme Court), not the provisional measures (freezing order).
- Therefore, service of the application to reverse the freezing order to the lawyer who received the writ on behalf of the Finnish company was inadmissible.
- The above result is free of doubt, notwithstanding the same lawyer acted and received documents on behalf of the Finnish company in a number of occasions, such as: representation before the Athens Court of First Instance and Court of Appeal; representation before the court which issued the freezing order; filing on behalf of the Finnish company of an application for declaring the Greek company insolvent, and representing the same party before court in the bankruptcy proceedings.
Almost ten years after the start of litigation, and following a number of hearings where the Finnish company was represented by the same lawyer, the Supreme Court considered that the latter had no powers of representation in a case initiated by his own application, followed by his appearance before the court, and his instruction to serve the freezing order to the losing party.
The ruling of the Supreme Court rests upon a formalistic construction of the law; contradicts to the factual situation of the dispute; causes additional costs to the applicant with no apparent reason; endangers the right to judicial protection, given that service from Greece to Finland is not business as usual.
Last but not least, the Supreme Court did not utter a word about the actual applicable rules, i.e those in the Service Regulation. It failed to take into account Recital 8 of the Preamble and the pertinent case law of the CJEU. Finally, it missed the chance to address the matter to the European Court of Justice, by filing a preliminary request for an issue which continues to puzzle academia and practice alike.