WHEN IS PERSONAL SERVICE EFFECTED? A CASE THAT REVIEWED THE PRINCIPLES
Since issues relating to personal service of proceedings are in the news this may a good time to review the principles. In Tseitline -v- Mikhelson  EWHC 3065 (Comm) Mr Justice Phillips reviewed the rules as to whether effective personal service had taken place.
A REMINDER: WEBINAR 24th SEPTEMBER 2021
On the 24th September 2021 I am giving a webinar looking at the key cases in relation to problems with service of the claim form over the previous 12 months. Booking details are available here.
The webinar looks at recent cases and identifies the problem areas so that litigators can learn from these cases and not their own mistakes.
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.
AN OBSERVATION AS TO ALTERNATIVE SERVICE
The judge found that the defendant had been properly served. However he was clear in his view that if personal service had not been effected he would not have exercised his discretion under CPR 6.15.
Mr Tseitline’s application
In view of my conclusion above that valid personal service was effected on Mr Mikhelson inside the Gallery, Mr Tseitline’s application does not require determination. It is sufficient to state that, if I had found that Mr Tseitline had failed to effect valid personal service on Mr Mikhelson, it would not have been appropriate to have dispensed with service under CPR 6.16 (requiring exceptional circumstances) or otherwise have deemed service to have been effected under CPR 6.15 (requiring good reason). Where, as here, a defendant can only be served out of the jurisdiction in accordance with the relevant provisions of CPR Pt 6 (absent valid personal service within the jurisdiction), a claimant should not be allowed to circumvent those provisions and prevent the defendant challenging the efficacy of any service purportedly effected by that route: see Cherney v Deripaska  I.L. Pr 49 per Langley J at para 53 and the cases there cited. The position is even clearer where, as here, the defendant is domiciled in a Hague Convention State: there will rarely be good reason to circumvent the agreed service process under that Convention, alternative service only being permitted in exceptional circumstances: see Cecil v Bayat  1 WLR 3086.
RELATED POSTS ON SERVICE
- Another claim form not served properly
- Served a copy claim form by mistake? There may be a way out but be careful.
- Service of the Claim Form: relief from sanctions and challenging the jurisdiction: a complex mix?
- There are now unexploded grenades in your filing cabinet: serve proceedings promptly and properly.
- Service of the Claim Form: Further traps for the Unwary
- Late Service of the Claim Form, extensions of time and sleepless nights
- Service of the Claim Form: “last known address” points to watch
- Service of the Claim Form: Essential Points before the Essential Checklist
- A Dismal Catalogue of Confusion and Error
- Delaying Service of the Claim Form: Dicing with Procedural Death
- Service of the Claim form: Another claimant comes to grief
- Service of the Claim Form and a good reason: And so to Bed
- Service of the Claim Form can be a problem for defendants too.
- Claim Forms: Declaration that steps taken constitute good service.
- Service of proceedings the “essential checklist”.
- Service of proceedings: adding to the essential checklist