Commercial Court provides guidance on requirements for personal service of proceedings on an individual defendant

The Commercial Court has held that proceedings were validly served on a Russian businessman during a visit to London, even though he refused to accept the documents and the process servers took the documents away again: Tseitline v Mikhelson & Ors [2015] EWHC 3065 (Comm).

The court found that the documents were left near the defendant long enough for him to exercise control over them  and inferred from his conduct that he understood he was being served with legal documents, even though he did not speak English. The decision highlights a number of practical points for those wishing to effect personal service on an individual:

• Documents must be handed to or left with the defendant in a way that gives the defendant control over the documents, even if for a brief period.
• It may be advisable to ensure the nature of the documents is apparent on their face, rather than for example handing over an unmarked envelope.  
• Where the defendant does not understand English, it may be advisable to arrange for the nature of the documents to be explained in a language the defendant understands, for example by having an interpreter accompany the process server.
• It may be helpful to arrange for a video or audio recording of the relevant events, particularly if it is anticipated that the defendant might seek to evade service. 

Ainslie Cranwell, a senior associate in the dispute resolution team, outlines the decision below.

Background

The underlying claim is against Mr Mikhelson, a Russian national who is resident in Russia, relating to the commercial development of real estate in St Petersburg. Rather than seeking permission to serve the proceedings on Mr Mikhelson outside the jurisdiction, the claimant sought to effect personal service on him when he was visiting London in October 2014.

Two efforts were made to serve Mr Mikhelson with the claim form and supporting documents. The events were filmed by the process servers involved. For the first effort, Mr Mikhelson was approached by a process server as he arrived at the Whitechapel Art Gallery with his daughter. Mr Mikhelson was informed in English that he was being served and took hold of one side of the envelope of documents, but then released his grip on the envelope when his daughter approached, leaving the process server holding the envelope. Mr Mikhelson's daughter speaks English and was asked by the process server to give the envelope to her father, which she did not. The process server made further attempts to hand the envelope to Mr Mikhelson, again repeating in English, and in earshot of Mr Mikhelson's daughter, that the documents were in connection with High Court proceedings. In response, Mr Mikhelson said "Speak only Russian" and continued walking into the gallery.

Inside the gallery, Mr Mikhelson was approached by a second process server who lodged a second envelope, containing a copy of the same claim form and supporting documents, between Mr Mikhelson's arm and his body. The process server let go of the envelope, after which it either fell or was thrown to the floor by Mr Mikhelson, who then walked into a different room in the gallery. The first process server then attempted to lodge his envelope with Mr Mikhelson's daughter, but she also let it fall to the floor. The process servers picked up the envelopes and left with them, and subsequently posted the claim form and supporting documents to Mr Mikhelson's residential and business address in Russia.

Mr Mikhelson challenged the validity of the service. 

Decision

The Commercial Court (Phillips J) held that the second effort to serve the proceedings amounted to good service.

CPR 6.5 provides that a claim form is served personally on an individual by leaving it with that individual. The equivalent pre-CPR rule was considered in the case of Kenneth Allison Ltd v A.E. Limehouse & Co [1992] 2 AC 105, where a two limb test was established. The test requires that the document either be (1) handed to the person to be served or, if they will not accept it, (2) that they be told what the document contains and the document be left with or near them. In the present case, the court considered three issues relating to this test:

1. For the first limb, where the document is accepted, whether the nature of the document must be immediately and readily apparent on its face. The court said it must – otherwise the recipient might discard it as junk mail without its contents ever reaching his attention.
2. For the second limb, whether a document can be "left with" the recipient if it is taken away by the process server. The court said it can. The recipient must be given a sufficient degree of possession to enable him to exercise control over the document, for however brief a period. If the recipient then abandons the document, it makes no difference whether the process server takes it away.
3. Also for the second limb, whether the recipient must understand the explanation of what the document contains. The court said the recipient must acquire knowledge that it is a legal document that requires their attention in connection with proceedings. This would ordinarily take place by way of an explanation. However, the court may infer that knowledge has been obtained from prior dealings or from conduct at the time of or after service, including conduct in evading service.    

Applying these principles to the facts of the present case, the court concluded that the first effort to serve the documents, outside the gallery, did not satisfy either limb of the test. It was not handed to or left with the defendant because the process server did not release the envelope, and so the defendant did not at any time have control of it. 

However, the court was satisfied that the second effort, inside the gallery, satisfied the second limb of the test. The envelopes were left sufficiently "with or near" Mr Mikhelson so that he had control over them, however briefly. It did not matter that the process servers took the envelopes away with them once he had abandoned them. It was also clear that Mr Mikhelson fully appreciated that the envelope contained claim papers relating to court proceedings. While the video did not record Mr Mikhelson's daughter explaining to her father what was happening, the court inferred that she had told him quietly in Russian. The court considered that Mr Mikhelson's knowledge that the envelope contained legal documents was undoubtedly demonstrated by both his and his daughter's conduct, including in not taking the envelopes when offered, not picking them up from the ground, and Mr Mikhelson telling the second process server in Russian to "go away".

Note: The appeal was dismissed in September 2016 at the request of the appellant.