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The Service of Documents and Taking of Evidence Post-Brexit

By January 5, 2021December 1st, 2023No Comments

On the 9th December the Chamber of Advocates circulated a letter sent by the Office of the State Advocate informing fellow colleagues with the changes affecting the service of documents and taking of evidence once the United Kingdom effectively leaves the EU on the 31st December 2020.

EU Regulation 1393/2007 and EU Regulation Recast 2020/1783 respectively govern issues regarding the service of documents and the taking of evidence in Civil and Commercial matters. In fact, Article 1 of Reg.1393/2007 states the following, “This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there…”. Also, Article 1 of Reg.2020/1783 stipulates that “This Regulation applies in civil or commercial matters in which the court of a Member State, in accordance with the law of that Member State, requests: (a) the competent court of another Member State to take evidence; or (b) the taking of evidence directly in another Member State.”

Since the UK is no longer party to the EU, the abovementioned regulations do not apply. A multitude of cases in Malta stem from issues concerning UK citizens and/or companies. Therefore it is imperative for any legal professional to be well versed in this department.

In this atypical scenario, instead of adhering to EU regulations, recourse to other International treaties is necessary. In fact, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970 must be utilised whenever anything which has to do with the UK crops up. 

Any request written in accordance with any EU law other than the abovementioned Hague Conventions received by the UK authorities will be automatically quashed and sent back to the Central Body. Therefore, one should keep an eye out for this recent transition to be in line with the post-Brexit position.

 written by Ian Barbara, Legal Trainee