PERSONAL SERVICE – TSEITLINE v MIKHELSON & OTHERS 2015 EWHC 3065Posted on 11/12/15
A recent case heard in London has clarified what constitutes “personal service” in the context of legal documents.
In the case of Tseitline v Mikhelson, the question was whether Mr Mikhelson (a Russian resident) had, whilst visiting London been validly served with a claim form issued by Mr Tseitline (who lived in Israel). The litigation related to a development in St Petersburg.
Two attempts were made to serve Mr Mikhelson when he visited the Whitechapel Art Gallery accompanied by his daughter and friends. The first attempt was made outside the gallery entrance. As he was getting out of his car, Mr Mikhelson was approached by a process server who held out an envelope and explained it contained court proceedings. The envelope itself merely contained the name of Mr Tseitline’s solicitors and did not describe its contents. Mr Mikhelson, who did not speak English, initially took hold of the envelope but following an exchange with his daughter (who did speak English) quickly let go leaving the process server still holding it.
Mr Mikhelson and his companions were then followed into the gallery by the process server who explained to the group he was instructed to serve him with court proceedings. The second attempt occurred when the process server’s colleague lodged the envelope between Mr Mikhelson’s arm and the rest of his body. This time Mr Mikhelson did not take hold of the envelope which ended up on the floor, either because he threw it or allowed it to drop.
The present rule (CPR6.5) simply provides that a Claim Form “is personally served on … an individual by leaving it with that individual”. Case law has applied the following two stage test - “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”.
The initial attempt at service did not succeed because it was not clear the envelope contained court papers. However the second attempt in the gallery was successful because Mr Mikhelson then knew (because his English speaking companions had told him) that the process server wanted to serve legal proceedings on him. It was immaterial that the envelope was in his possession for only a short period of time. The court ruled he had been served with the proceedings even though the person attempting to serve them subsequently took the documents away.
Many court documents have to be personally served e.g. bankruptcy/attachment of earnings. Envelopes should summarise the content (i.e. court papers) and the recipient be told what the document contains and be given every opportunity to take possession of it.
(The above article will appear in the January – March 2016 edition of “ The Consumer Credit Magazine “ issued by the CCTA)