Under the Civil Procedure Rules, where the defendant is an individual, the claim form is served personally by “leaving it with that individual”. But what does that mean, particularly in circumstances where the individual refuses to accept the claim form? The recent case of Gorbachev v Guriev provides a useful case study, in which it was held by the High Court that personal service was effective where the documents were placed beside the defendant’s car before it was driven off. The case addresses a number of important practical considerations when preparing to serve an individual in person.
The claimant and the defendant were Russian nationals and former business associates. On 19 October 2018, a process server acting on behalf of the claimant attempted personal service of the claim form on the defendant. The defendant was exiting the Mayfair Hotel on Berkeley Street in London with a group of associates. As he approached his car, a process server, who had been waiting in a branch of Starbucks on the other side of the street, approached and attempted to serve him with what he described as “very important legal papers”. The defendant’s associates effectively formed a cordon, preventing the process server from moving closer to the defendant. After exchanges between the process server and the defendant’s associates, he placed the documents on the ground next to the defendant’s car before it was driven off.
The events were recorded on mobile phones of the two process servers present. The claimant argued that there had been good personal service of the claim form. The defendant claimed otherwise and maintained that his knowledge of English was limited.
The court was required to determine whether:
- The process server had correctly identified the defendant as the person whom he intended to serve or whether he had mistakenly tried to serve one of his associates.
- The defendant knew that the process server was trying to serve documents on him.
- The defendant had sufficient knowledge of the nature of the documents to allow a finding of service.
- The process server had left the papers sufficiently near to the defendant as to allow a finding that they were left with him.
CPR 6.5(3) provides that “a claim form is served personally on an individual by leaving it with that individual”.
In Kenneth Allison Ltd (In Liquidation) v AE Limehouse & Co, it was stated that if the person on whom service was being attempted would not accept the document, service could be effected either by handing the document to him by telling him what the document contained and leaving the document with or near him.
In Tseitline v Mikhelson, it was stated that knowledge of what the documents contain for this purpose is acquired by it being brought to the intended recipient’s attention. 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’”.
The court held as follows:
- Identification of defendant: having regard to the video footage, there was no reason to reject the process server’s evidence. Among other things, the process server appeared consistently to direct his comments at the defendant.
- Defendant’s knowledge of service: there was a plausible evidential basis for concluding that the defendant did realise that this was an attempt to serve papers on him, and that at least one of the people with the defendant who spoke better English would have told him what the process server was seeking to do.
- Knowledge of nature of documents: having regard to the discussion between the defendant and his associates and the fact that they were trying to stop the process server getting near to him, there was a plausible evidential basis for concluding that the defendant knew that service of court proceedings was being attempted.
- Leaving of papers: it was argued by the defendant that the process server could have dropped the papers through an open door before it was closed or placed them in the car when the roof was retracted on departure. However, in the court’s view, the overall impression from the footage was that the process server got as near to the defendant as he could have done without assaulting someone or risking his own safety. Accordingly, he left the papers as near to the defendant as was reasonably practicable at the time he let go of them.
In summary, the court had enough reason to conclude that the documents were left sufficiently near to the defendant to render the service good.
The case shows how personal service may be effected by a process server where the defendant may have limited English and is refusing to accept receipt of the papers. It confirms that, depending on the circumstances, a claim form does not necessarily have to be handed to the defendant in order to effect service under CPR 6.5(3). More than anything else, it underlines the importance of having robust evidence to persuade the court that service has been effective.
When preparing to effect personal service, particularly if it is anticipated that the defendant may refuse to accept service, it is important to consider the following:
- Ensure that the whole process is recorded by video and audio. This evidence was invaluable to the court in Guriev in reaching its decision in the face of evidence from the defendant and his associates disputing what was said and done.
- Ensure that the process server makes it clear to the defendant what is being served. While the process server in Guriev made reference to “legal papers”, the court noted that it would have been more straightforward if he had said that the documents related to court proceedings.
- Ensure that the documents being handed to the defendant are clearly identifiable on their face. In Guriev, the front sheet of the bundle of documents stated that the documents were “important legal documents” and referred to “the commercial court” and “an issued claim form.”
- Ensure that the process server knows who the defendant is by providing them with a photo of the defendant. This is particularly important where the defendant is likely to be accompanied by associates. A number of attempts were made on the defendant’s side to argue that the process server was confusing the defendant’s associates with the defendant. However, the evidence established that he was consistently addressing his comments to Mr Guriev.
- Ensure that the documents are placed sufficiently near the defendant in the event that the defendant refuses to accept the documents. This will inevitably be a fact sensitive question as to what is reasonably practicable. The court held that if the claimant can show that the defendant has sufficient knowledge of the nature of the documents and the process server has left the documents as close to the person as is possible within sight of the person to be served. The court left open “for another day” the argument of whether it would be sufficient to allow a finding of personal service if the documents are not deposited in the eyesight of the person to be served.