When is personal service effected on a non-English speaking defendant?

In Tseitline v Mikhelson and others [2015] EWHC 3065 (Comm), the court considered whether proceedings had been personally served on the defendant, who did not speak English. The key issues were whether the defendant had accepted the documents and whether the documents had been left by the process server.

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.

Background

The defendant was a Russian businessman, resident in Russia, who claimed not to speak or understand English. During a visit to the UK to attend an art gallery, the claimant attempted (via two process servers) to serve the claim form and associated documents on the defendant.

The exact events surrounding the attempted service are a little complicated and not agreed upon by both sides, but the key facts, as found by the judge, were that:

• one of the process servers had encountered the defendant outside the gallery and told the defendant that he was there to serve papers in a High Court claim;
• the defendant initially took hold of one side of the envelope, while the process server retained hold of the other side, but after speaking with his daughter, the defendant released the envelope, leaving the process server holding it;
• inside the gallery, the other process server attempted to serve the envelope on the defendant by placing it under his arm; the envelope then fell to the floor. After a few attempts, the process server eventually picked up the envelope, and left the gallery.

The defendant challenged the jurisdiction of the English courts on the grounds that he had not been served.

What does the law say?

Under English law, a claim form may be served within the jurisdiction on a defendant, regardless of their domicile. Personal service within the jurisdiction under Civil Procedure Rule (CPR) 6.5 provides an alternative to effective service on a foreign defendant under the procedure for serving the claim form out of the jurisdiction (under CPR Part 6).

Personal service may be effected by:

• handing over the document, in a situation where its nature is immediately and readily apparent on its face; or
• where the intended recipient refuses to accept a document, leaving the document with or near the defendant, provided that they are told that it is a legal document which requires their attention in connection with proceedings.

A document will be regarded as having been left with the recipient if they have been given a sufficient degree of possession to enable them to “exercise dominion” over the document for any period of time, however brief.

What did the court decide in this case?

The judge found that the documents had not been “handed” to the defendant outside the gallery, because the process server had not relinquished control of them at any stage. Had he let go of the envelope as soon as the defendant took hold of it, this may have been sufficient, but he did not.

Turning to events inside the gallery, it was clear that the defendant was not willing to and did not accept the envelope, so it had not been “handed over” to him. The claimant therefore needed to prove that it had a “good arguable case” that i) the documents had been “left with” the defendant, and ii) the defendant had been “told” that they were legal documents.

The judge found that the process server had left the documents with or near the defendant, and had relinquished control of them, even if briefly. The fact that he had eventually picked the documents back up did not matter.

The judge also found that the defendant had been “told” of the nature of the documents. The judge found that there was a subjective element to this: the defendant needed to acquire knowledge as to the nature of the documents. For a non-English speaker, this might not necessarily be satisfied simply by the process server merely explaining in English. In this case, however, the judge was satisfied that, through the English-speaking companions that he had with him, there was a good arguable case that the defendant had understood the nature of the documents.

Practice points

This judgment provides helpful guidance for effecting personal service on an individual:

• the nature of the documents should be apparent on their face (for example, in a marked envelop) – this can help to prove that the intended recipient understands the legal nature of those documents;
• process servers should be instructed that, if an intended recipient takes hold of the documents, the process server should immediately relinquish control of those documents;
• service can be effected even where the process server eventually takes the document away, provided that the intended recipient had been given a sufficient degree of possession of the document to enable him to exercise control over it for any period of time, however brief;
• in cases where the recipient refuses to accept the documents, the process server should explain to them what the documents are;
• when attempting to effect personal service on a foreign individual, it is advisable to ensure that the nature of the documents and their purpose is made clear in the recipient’s native language;
• process servers should keep as detailed records as possible of the events, particularly if it is anticipated that the defendant might seek to evade service.