YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 9: IS IT ART? OR IS IT THERE TO SERVE?
This week the candidates were buying and selling modern art. How did our litigator Sarah Ann frame up? Was her contribution sketchy or abstract?
Sarah was part of a group looking for modern art for a high-end speaker company. Sarah-Ann made a typical lawyer’s mistake of talking too much. Talking over music whilst the client’s upmarket speaker system was being demonstrated. Her group was looking for art that had “innovation, provenance and experience”. A problem occurred because the group were not exactly sure what “provenance “was. Nevertheless art was sold, and the team she was in came out on top. She stayed out of the boardroom and she continues to make a good impression(ism). All appears to be fair in art and war and Sarah stays on the canvas.
A CASE ABOUT AN ART GALLERY
I was talking today on the Zenith annual update course (with Sarah-Ann in the audience – I even made her team leader for the quiz we had) about the ever present danger of not serving the claim form properly. It appears apposite to write about a case that covers both art, a gallery and service. In Tseitline -v- Mikhelson  EWHC 3065 (Comm) Mr Justice Phillips had to consider whether effective personal service had taken place at the National Gallery.
The claimants had attempted to serve the defendant outside, and then later inside, the National Gallery. The defendant refused to accept the documents and they were taken away by the process servers. The documents were later sent by post to a number of addresses in Russia. The defendant disputed jurisdiction on the grounds that the documents had never been properly served on him. He had not known these were legal documents and, in any event, they had been taken away.
THE LAW RELATING TO PERSONAL SERVICE
The law relating to personal service
“(3) A claim form is served personally on –
(a) an individual by leaving it with that individual;”
The Rules provide no further guidance as to the interpretation of that provision.
In Kenneth Allison Ltd v A.E. Limehouse & Co  2 AC 105 the House of Lords considered what was meant by “leaving a document with the person to be served“, being the equivalent (and effectively identical) requirement for personal service in the former RSC (Order 65 r 2). Lord Bridge of Harwich stated, at p. 113E:
“There is abundant authority for the proposition that personal service requires that the document be handed to the person to be served or, if he will not accept it, that he be told what the document contains and the document be left with or near him.“
“Prima facie, the process server must hand the relevant document to the person upon whom it has to be served. The only concession to practicality is that, if that person will not accept the document, the process server may tell him what the document contains and leave it with him or near him.“
Both parties accepted that the above test, recognising a distinction between where a document is accepted (the first limb) and where it was not accepted (the second limb), was equally applicable to personal service under CPR 6.5(3). However, the parties differed as to meaning, effect and consequences of the Kenneth Allison test in a number of respects, giving rise to the following issues:
i) whether a document will be considered to have been ‘handed to’ and accepted by the person to be served (within the first limb, requiring no explanation by the process server) if its nature is not apparent from the face of what is delivered, such as where (as in the present case) it is contained in an envelope with no explanation of its contents on its face;
ii) whether a document will be considered to have been ‘handed to’ or ‘left with or near’ the person to be served if it is subsequently taken away by the process server;
iii) whether, where an explanation of the contents of the document was required because the document was not accepted (the second limb), it is sufficient if the process server gave an explanation which would be understood by an English speaker, even if it was not in fact understood by the person to be served (an objective test as to whether he was ‘told’), or whether it is an additional requirement that the explanation resulted in the person to be served having actual knowledge of the nature of the document (a subjective test as to whether he was ‘told’).
THE JUDGE’S FINDINGS
The judge found that:
(1) For a claim form to be served the defendant had to know their nature.
(2) The fact that the defendant refused to accept service, left them behind, or that they were taken away by the process server did not mean that the documents were not served.
(3) The process of leaving a document with the intended recipient must result in them acquiring knowledge that it is a legal document requiring their attention in connection with proceedings.
(4) The burden of establishing proper service lies with the claimant.
(5) A process server who does not release the relevant document and retains control of the document at the end of the purported “service” cannot be said to have served the document.
On the facts of this case:
(1) The defendant knew that the documents being served on him were legal documents that required his attention.
(2) The documents were left near the defendant. They were placed on his body. He refused to accept them and he fell to his feet. This amounted to good service.
(3) Despite the fact that the defendant did not speak English the gist of what was being said was communicated to him by his English speaking companions at the time of attempted service and of service itself.
(4) The defendant, had, therefore been properly served.
The judge found that the defendant had been properly served.