PERSONAL SERVICE EFFECTIVE WHEN DOCUMENTS PUT THROUGH THE DOOR OF A LETTERBOX: THE FOCUS IS ON THE KNOWLEDGE OF THE RECIPIENT

In Field v Del Vecchio [2022] EWHC 1117 (Ch)  HHJ Paul Matthews (sitting as a High Court judge) considered whether committal proceedings had been properly served.  The papers had been put through a letterbox in a flat when the defendant was standing on the other side.  This was held to be effective service.

“I am also satisfied that, by pushing the envelope containing the documents through the letter box when the defendant was on the other side of that locked door, and talking, or having just been talking to the process server through the door, those documents were left as close to the defendant as was reasonably possible for the process server to achieve. They could not have failed to come to the notice of the defendant, who was, after all, in the flat with a locked door and there was no possibility of any other person coming along and taking the documents away from him.”

THE CASE

The claimant brought proceedings for contempt against the defendant. It was necessary for those proceedings to be served personally on the defendant. Service took place by putting the documents through a letterbox of a flat. The defendant was on the other side of the door and the process server informed the defendant of the nature of the documents being served.  The judge had to consider whether this was good service.

THE JUDGMENT ON SERVICE OF THE DOCUMENTS

The defendant did not appear at an application for committal. The judge had to consider whether the committal documents had been served, the defendant had to be served personally.

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1. 1. The next point that has been argued before me in this contempt application relates to the question of service of the order made by Marcus Smith J on 13 December 2021. I have set out the background to this case in the earlier ruling I gave on the issue of the Bench Warrant; I shall not repeat that.

1. 1. The order was made on 13 December and on 16 December 2021 it was served by email on the defendant at the email address which he used for correspondence. The order of Marcus Smith J, at para.13, said,

“This order is to be served by the claimant on the defendant. The claimant may effect service of this order on the defendant at the defendant’s email address (inaudible) email delivered to (inaudible) service”.

1. 1. However, Mr Sherwin quite properly tells me that it was accepted before the judge that this did not apply to the requirement of personal service for the purposes of a contempt of court application, so the claimant is not able to rely on para.13 and the email service for this purpose. Therefore, the claimant had to serve personally, unless the court had otherwise dispensed with it.

1. 1. As to that, the process server concerned made an affidavit which set out what happened when he attended at the flat. The process server was a gentleman called Cesar Sepulveda and he comes from a firm in Angel Gate, City Road, London EC1. He gives evidence in his affidavit that he attended first of all at the block of flats on 16 December in an attempt to give it to the defendant. He managed to get into the building and rang the door. He did not manage to engage the defendant in anything other than a discussion about whether he should go or not. He came back to the building later the same day, again got into the building but again was unsuccessful in engaging the defendant. I think on the second occasion he said there was no response when he rang the bell.

1. 1. On the next day he returned to the block and again he managed to get into the building, but this time when he rang at the door, the defendant came to the other side of the door and started speaking to him. However, he did not open the door. Eventually, after some time, when Mr del Vecchio, the defendant, would not open the door (he was on the other side of it), the process server explained the nature of the documents, that it related to an injunction relating to the proceedings being brought by the claimant against the defendant, and then he simply pushed the envelope through the letter box to the interior of the flat.

1. 1. The test for what constitutes personal service has been set out in a number of authorities. Conveniently, I have been referred to the discussion by HHJ Pearce, sitting as a Judge of the High Court, in Gorbachev v Guriev [2019] EWHC 2684 (Comm). At para.27 the judge said this:

“The relevant law on the personal service of a claim form can be summarised as follows:

(i) CPR 6.3(1) provides for service of a claim form by various means, including ‘personal service in accordance with rule 6.5.’

(ii) CPR 6.5(3) provides that ‘a claim form is served personally on an individual by leaving it with that individual …’.

(iii) Service on an agent could not be good personal service – see for example Morby v Gate Luxembourg IV Sarl [2016] EWHC 74.

(iv) In what has been described as a ‘concession to practicality‘, if the person upon whom service is being attempted will not accept the document, service can be affected either by handing the document to the person (what is often called a ‘limb 1’ case) or by telling the person what the document contains and leaving the document with or near the person (a ‘limb 2’ case) – see Kenneth Allison Ltd v A E Limehouse & Co [1991] 3 WLR 671.

(v) Knowledge of what the documents contains for this purpose is acquired by it being brought to the intended recipient’s attention ‘that it is a legal document which requires his attention in connection with proceedings‘ – see Hoffman LJ in Walkers v Whitelock, unreported, 19 August 1994, cited by Phillips J in Tseitline v Mikhelson [2015] EWHC 3065 (Comm).

(vi) ‘The focus is on the knowledge of the recipient, not the process by which it is acquired‘ – per Phillips J in Tseitline.

(vii) Once the intended recipient has ‘a sufficient degree of possession of the document to exercise dominion over it for any period of time however brief, the document has been ‘left with him’ in the sense intended by the Rule‘ – see Waite LJ in Nottingham Building Society v Peter Bennet & Co, The Times, 26 February 1997 cited by Phillips J in Tseitline.

(viii) If the intended recipient has gained possession within the meaning referred to in the previous sub-paragraph, it makes no difference that the person seeking to effect service may subsequently remove the document, for example because the intended recipient has not taken the documents and has walked away from them – see Phillips J in Tseitline.

(ix) The burden is on the Claimant to show a good arguable case that service was effected on the Defendant – see for example Tseitline.

(x) Where an issue of fact arises as to whether there is such a good arguable case, the court must take a view on the evidence if it can reliably do so (Goldman Sachs International v Novo Banco SA [2018] UKSC 34).

(xi) If the court is not able to make a reliable assessment of an issue on the evidence available, it is sufficient for the Claimant to show a plausible evidential basis on the issue (again, Goldman Sachs International v Novo Banco SA [2018] UKSC 34).”

1. 1. In that particular case there was an attempt by a process server to serve papers on the defendant in Berkeley Street in London at a time when he was on the pavement but surrounded by four other men who may have had the function of seeking to protect him from unwanted attention, and the evidence before the judge here was that these four men came forward and prevented the process server from getting close to the defendant for the purpose of serving him, and then they got the defendant into a car, which was then driven away, but before that happened, the process server had managed to put the papers next to the car, and the question was whether that constituted good personal service. At para.61 and following the judge says:

“61. On any version of events, Mr Guriev was a wealthy person. It is unsurprising that, when on the streets of London, there are people near him who can provide protection if that is necessary. When the exact role of the people is not identified in the witness statements, the overwhelming inference is that at least part of the reason for there being four associates or family members with him on the street is to protect him against unwanted contact with others. It takes very little analysis to think that this might include trying to avoid personal service of court proceedings taking place.

62. A careful study of the footage [I interpolate to say that this was shown to the court] shows a strong case that the people with Mr Guriev were acting in a concerted way to protect such contact here. One of the striking features of their movements during the incident, amply demonstrated by the helpful diagrams produced by the Defendant and annexed to Mr Micklethwaite’s second witness statement, is that Mr Guriev starts the incident in the middle of the group of men, but as the confrontation with Mr McDonagh-Allen proceeds all four other men come to be between him and Mr McDonagh-Allen.

63. I have no hesitation in finding on the basis of the events as apparent from the footage, that those with Mr Guriev were trying to stop Mr McDonagh-Allen getting any closer to him.

64. There was some debate during submissions about whether when Mr Soliman starts to open the car door, he can properly be described as ‘corralling‘ Mr McDonagh-Allen away. Whether that is the correct term or not, the overwhelming inference from the evidence is that this was an attempt to make it hard for Mr McDonagh-Allen to get near Mr Guriev. The overall impression from the footage is that Mr McDonagh-Allen got as near to Mr Guriev as he could have done without assaulting someone and/or risking his own safety. I fail to see how Mr McDonagh-Allen could, by the time he let go of the documents, have got any closer to the Defendant.

65. The Defendant draws attention to the act that Mr McDonagh-Allen might have leant into the car to deposit the document inside or indeed might have stayed on the scene until the roof was retracted and deposited the documents in the car from above. As to the first of these, I consider that to be unrealistic. It would not have been easy for Mr McDonagh-Allen to reach into the car through the partially open door and, had he done so, he would have risked injury through the door being closed on him … The second of course supposes that Mr McDonagh-Allen should have anticipated that the roof would be retracted. No doubt the pleasure in driving a car of this kind lies in retracting the roof when possible, but I doubt whether the roof would have been retracted had Mr McDonagh-Allen remained on the scene attempting to serve the papers – my assessment of the conduct of the men referred to above would suggest that this would have been unlikely. Certainly Mr McDonagh-Allen could not have expected that they would have done so.

66. It follows from the analysis above that Mr McDonagh-Allen left the papers as near to Mr Guriev as was reasonably practicable at the time he let go of them. I leave for another day the argument of whether that would be sufficient to allow a finding of personal service if the documents were not dropped in the eyesight of the person to be served. But these documents were so deposited. In my submission, where the Claimant is able to show that the person to be served had sufficient knowledge of the nature of the documents and where, within the sight of the person to be served, the process server left the documents as close to that person as was possible given the attempts by those with the Defendant to prevent him getting any closer to the Defendant, the court has sound material to conclude that the documents were left sufficiently near to the person to render the service good.

67. It follows from the analysis above that I am satisfied that the Claimant effected personal service of the Claim Form on the Defendant on 19 October 2018.”

I need not read the final paragraph of the judgment.

1. 1. So that is the decision of HHJ Pearce both on the law and on the facts. This case is not a case where the process server attempted to hand the documents to the defendant. Instead it is one where he left the documents with the defendant. It is a “limb 2” case rather than a “limb 1” case. First of all, the evidence entirely satisfies me that the process server, as befits a professional process server knowing the law, explained through the locked door what the documents were, that they related to the proceedings and an injunction. Secondly, I am also satisfied that, by pushing the envelope containing the documents through the letter box when the defendant was on the other side of that locked door, and talking, or having just been talking to the process server through the door, those documents were left as close to the defendant as was reasonably possible for the process server to achieve. They could not have failed to come to the notice of the defendant, who was, after all, in the flat with a locked door and there was no possibility of any other person coming along and taking the documents away from him.

1. In those circumstances, therefore, I am entirely satisfied that good personal service was effected on the defendant on 17 December 2021 at about 10.30 a.m.