THE SERVICE OF PROCEEDINGS WAS PHOTOGRAPHED AND FILMED : AND THIS TURNED OUT TO BE IMPORTANT

In Yukos Finance BV & Ors v Lynch & Ors [2017] EWHC 1812 (Comm) the claimants were so concerned about the defendant’s attempt to evade service that they arranged for the process to be photographed and filmed. As it turns out recording service was important.  This may be an important lesson to claimants who believe that the issue of personal service may be disputed.

THE CASE

The claimants brought an action against 5 defendants. They had experienced difficulty serving those proceedings against a Mr Lynch. They obtained an order for an extension of time and for alternative service in Lebanon.  He was served in Beirut airport.   Mr Lynch then made an application to set aside the order extending time. He also argued that “he steps taken were not such as to bring the nature of the documents served on him to his attention”.

THE ISSUE OF CORRECT SERVICE

Mr Justice Teare rejected the argument that the orders extending time and giving permission to serve should be set aside.  He then went on to consider the argument that Mr Lynch was not aware of the nature of the documents being served on him.

THE JUDGMENT

    1. There remains the question whether the nature of the documents served on Mr. Lynch in Beirut Airport was sufficiently made known to him. The applicable test is set out by Phillips J. in Tseitline v Mikhelson and others [2015] EWHC 3065 (Comm) at paragraph 34 as follows:
“In my judgment it is plain from these authorities (and from the special nature and role of personal service discussed above) that the process of leaving a document with the intended recipient must result in them acquiring knowledge that it is a legal document which requires their attention in connection with proceedings. Whilst this is expressed as requiring that the intended recipient be “told” the nature of the document, the focus is on the knowledge of the recipient, not the process by which it is acquired. Whilst in most cases knowledge of the nature of the document will be found to have been imparted by a simple explanation, it is clear that it can … also readily be inferred from pre-existing knowledge, prior dealings or from conduct at the time of or after service, including conduct in evading service: see Barclays Bank of Swaziland v Hahn [1989] 1 WLR 506 at 512A.”
    1. It is therefore necessary to set out what happened at Beirut airport. A first hand account is given in the first witness statement of Mr. May, a private investigator instructed by the Claimants to deliver the Claim Form and other documents to Mr. Lynch. In his statement dated 31 January 2017 he recounted what happened at the check in at Beirut Airport on 1 January 2017 when he encountered Mr. Lynch.
“I placed a black material bag containing the Documents immediately in front of Mr. Lynch on the check-in counter…and said words to the effect of “I am here to deliver some documents to you”. The Documents contained therein were visible and easily accessible to Mr. Lynch. Mr. Lynch appeared somewhat flustered, nodded his head in agreement and murmured “OK” in a weak but audible tone. I saw Mr. Lynch place a hand on the black material bag and I walked away from him and the check-in counter. “
    1. He commented upon photographs taken by a colleague.
“The photographs show Mr. Lynch placing his right hand on the black material bag…while turning to speak to the male beside him….The photographs show Mr. Lynch inspecting the Documents contained in the black material bag by leafing through the Documents with both hands.”
    1. Mr. May said that he later spoke to the check-in attendant present at the time who told him that Mr. Lynch had said words to the effect of “these are documents that I don’t want to take. Call security.”
    2. Mr. Lynch in his witness statement dated 16 May 2017 gave this account.
“When I was at the check-in for Aeroflot a casually dressed man, not known to me, approached me and thrust into my arms a black cloth sack saying “these are the papers for you, I don’t know what they are”. After pushing the cloth sack into my arms the man immediately released the sack and left. I immediately put the sack on the check-in counter in front of me. The sack said, “Tulip Royal Hotel” and “Laundry”. I could not tell what was in the sack. The Aeroflot representative who was directly in front of me asked me whether I knew the man who had given me the sack or knew what was in the sack. I told him I did not. The Aeroflot representative told me not to touch the sack and called airport security. He then instructed me to leave the check-in area without touching or taking the sack with me. “
  1. Mr. May replied to that account in his second witness statement dated 21 June 2017 to which was exhibited a video taken by his colleague. Mr. Lynch did not object to the video being admitted in evidence. Mr. May disagreed that he had thrust or pushed the bag into Mr. Lynch’s arms. He said he placed the bag in front of Mr. Lynch on the check-in counter. He said that he did not say “these papers are for you, I don’t know what they are”. He said he expressly recalled using the word “documents” and was well aware that they related to legal proceedings in London. He accepted that the bag bore the words “Royal Tulip Luxury Hotels” but not that they bore the word “Laundry”. He recalled that the Documents were clearly visible within the bag. He commented that the photographs and video showed Mr. Lynch inspecting the Documents in the bag by leafing through them with both hands.
  2. Mr. Lynch in his speaking note commented upon the video and maintained his account of the exchange. He also pointed out that he was not wearing his glasses and could not know what the documents said. He denied that he had leafed through the documents.
  3. There is no evidence that Mr. Lynch was told that the documents related to legal proceedings in London or that such documents were being served on him. They were described to him either as “documents” (according to Mr. May) or “”papers”, (according to Mr. Lynch). But the photographs, in particular those at pp.10 and 11 of the exhibit to Mr. May’s first witness statement, show Mr. Lynch inspecting the contents of the bag with both hands in a manner consistent with the expression “leafing through documents”. The video confirms that, though such “leafing through” did not last long. The photographs and video confirm Mr. May’s evidence that the documents were visible and easily accessible.
  4. The question is whether it can be inferred from the events at Beirut Airport that Mr. Lynch had knowledge that the documents or papers were legal documents or papers which required his attention in connection with proceedings. In circumstances where the documents were visible and easily accessible and where Mr. Lynch leafed through them I consider that it can be safely inferred that Mr. Lynch knew that they were legal documents that required his attention in connection with proceedings. I have of course noted Mr. Lynch’s evidence that he could not tell what was in the sack or bag but I am confident that it can be inferred from the fact that he leafed through the documents that he appreciated that the sack or bag contained legal documents that required his attention in connection with proceedings. I have also noted Mr. Lynch’s comment in the course of his submissions that he was not wearing his glasses at the time and could not know what the documents said. He had not mentioned this in his witness statement from which I infer that, although he uses glasses (he used them when addressing me in court) the absence of his glasses at the time was not such as to prevent him from ascertaining the nature of the documents. That is also suggested by the manner in which he is seen to be leafing through the documents in the video and photographs.”

 

THERE MAY BE SOMETHING ABOUT SERVICE AT AIRPORTS

Morby -v- Gate Gourmet Luxembourg IV SARL [2016] EWHC  74 (Ch) is also a case about service at an airport. In that case the defendant arranged for proceedings to be put in the bin, see Service of Proceedings when they were put in the bin.

 

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