Morby v Gate Gourmet Luxembourg and another is a further example of the courts taking a pragmatic approach to deciding whether legal documents have been served.
Mr Morby agreed with his creditors to accept service of a bankrupty petition at a pre-arranged appointment at Heathrow Airport. At the meeting Mr Morby was accompanied by a Mr Malik whose role was to check the bankrupty petition was accurate.
The process server, Mr Beecham, said he handed the petition to Mr Morby. However, Mr Morby denied this and alleged Mr Beecham gave the petition straight to Mr Malik. Mr Malik felt there were inaccuracies in the petition and tried to hand it back to Mr Beecham. The process server refused to accept the return of the petition whereupon Mr Malik simply put in a bin.
The court had to decide whether, assuming Mr Morby was correct in his allegation that he had not even touched the petition, had he nevertheless been personally served with it?
The specific section from the Insolvency Rules 1986 (Rule 6.14(1)) requires that a bankrupty petition “shall be served personally on the debtor ………… and that service shall be effected by delivering to him a sealed copy of that petition”. Where a document is not actually handed to the recipient, case law states it has still been served if the person to be served is “told what the document contains and the document be left with or near him”.
The court had little difficulty in ruling the test had been satisfied. Mr Morby knew what the document contained having agreed to meet the process server. At the appointment, Mr Morby could have retrieved the petition either from Mr Malik or from the bin. This meant the petition had definitely been left either “near” or “with“ him. Therefore he had been properly served.
The earlier case of Tseitlien v Mikhelson, ruled that a claim form had been validly served on Mr Mikhelson even though his contact with the document was minimal. Mr Morby was deemed to have been served with a document even though he did not touch it at all. These rulings are the result of what the Judge described as “a common sense test that resolves an important practical difficulty of effecting personal service arising in many cases, namely, the refusal of an astute potential recipient of personal service to accept the proferred document, in the hope of avoiding the personal jurisdiction of the court…….”.
The above article appears in the April – June 2016 edition of “ The Consumer Credit Magazine “ issued by the CCTA)