There are sometimes moments in a film or TV drama when legal proceedings are served on a startled recipient. The process server hands over the papers to the surprised target, stating with suitably dramatic effect something along the lines of “You’ve been served!” Only in the movies? Well, as the judgement in a recent High Court case* illustrates, attempts at personal service can indeed be dramatic, but the manner in which they are carried out can have important legal implications.
Proceedings are commonly served by post, by delivery to a company’s registered office, or on occasion, by fax. The Court also has the power to order service by an alternative method, which has given rise to some notable stories about service on Facebook and Twitter in recent years. But what about situations in which the claimant simply doesn’t have any information as to the defendant’s address? Frequently, the best way of removing any doubt as to whether someone has been validly served, without costly applications to Court, is to serve proceedings personally.
In the case in question, the claimant, Mr Tseitline, sought to effect personal service on Mr Mikhelson, a Russian national who rarely spent time in the UK. Valid personal service would allow Mr Tseitline to avoid difficult questions of where Mr Mikhelson was usually resident, or an expensive application to the Court for permission to serve the claim documents outside the jurisdiction. Making sure that personal service was carried out effectively was therefore of the utmost importance.
Mr Tseitline’s solicitors chose to act when Mr Mikhelson was on a brief visit to the country in October 2014. They discovered that Mr Mikhelson was due to attend the opening of an art exhibition in London. On the evening of the exhibition, two process servers awaited Mr Mikhelson’s arrival by chauffeur-driven car outside the Whitechapel gallery. When the car arrived and Mr Mikhelson emerged from it with his daughter, one of the process servers approached him whilst the other filmed proceedings on a camera hidden inside a key fob. At the first attempt, the process server placed an unmarked envelope containing the court papers into Mr Mikhelson’s hand, but did not himself let go of it. Mr Mikhelson did not speak or understand English, but after his daughter spoke some words to him in Russian, he let go of the envelope. The process servers then followed Mr Mikhelson and his party into the gallery, trying to explain, in English, that they were handing over High Court papers. Once inside the gallery, another attempt was made to put the envelope into Mr Mikhelson’s hands, but it was placed in the crook of his arm and he promptly dropped it. It was then placed behind a bag on Mr Mikhelson’s daughter’s back, but again dropped to the floor. Then, as Mr Mikhelson walked through a door from the foyer into the main gallery, one of the process servers threw the envelope after him, but it hit the closing door and was not picked up. The process servers left the gallery with the court papers still in their possession. So… was the claim validly served?
The court rules provide that a claim form is served personally on an individual “by leaving it with that individual”. Case law has provided that “leaving” a document with the person to be served involves two aspects. The document must be handed to the person to be served so that he has control of it, or alternatively (if he will not accept it), he must be told what the document contains and it must be left with or near him. In either case, the process of leaving a document must result in the recipient acquiring knowledge that it is a legal document which requires their attention in connection with proceedings. In this instance , the Judge found that the documents were not left with Mr Mikhelson by the car, as the process server didn’t let go of the envelope and relinquish control. Nor did he accept the documents once in the gallery. The question was therefore whether the documents were left with or near to him, and whether he was told what they contained so as to have acquired the requisite knowledge. The Judge held that when the envelope was placed on Mr Mikhelson’s body and dropped on the floor, that amounted to its being left with or near to him. The process server had relinquished control, notwithstanding that the documents then had to be picked up. Based on the video evidence, the judge was also satisfied that Mr Mikhelson was told the nature of the document being served whilst in the presence of people who had translated what was being said to him.
Lessons for claimants and defendants
Claimants should ensure that their process server is familiar with the rules on personal service, and bear in mind the extra steps that may need to be taken if the defendant doesn’t speak English! For defendants unable to keep a low profile or stay out of the country altogether, the facts in this case show how difficult it can be to avoid personal service by a determined claimant. Nonetheless, an awareness of the rules could be a useful weapon in challenging attempts at personal service which don’t follow best practice.
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*Tseitline v Mikhelson and Others  EWHC 3065 (Comm)