Tseitline v Mikhelson & Ors

Personal service requires the recipient to acquire knowledge that the document is a legal document requiring attention in connection with proceedings. Where the document’s nature is not apparent on its face, handing over an unmarked envelope falls within the second limb of the personal-service test and requires an explanation, or circumstances from which its nature can be inferred.

A document is left with or near the recipient when the process server relinquishes control and the recipient has sufficient possession to exercise dominion over it, even briefly. Subsequent retrieval by the process server does not undo service. The relevant knowledge may be established by translation, prior dealings or the recipient’s conduct.

The claimant brought proceedings concerning alleged breaches of a 2007 agreement relating to commercial property development in St Petersburg. Process servers attempted to serve the first defendant personally in London, first outside and then inside the Whitechapel Gallery.

The defendant challenged the court’s jurisdiction, asserting that he had not been served. The claimant applied in the alternative for service to be dispensed with, rectified or deemed effective. The issues were whether either attempt constituted personal service under the Civil Procedure Rules and whether the claimant had established the applicable standard of proof.

1. Personal service test. The test in Kenneth Allison Ltd v A.E. Limehouse & Co applied to CPR 6.5(3)(a). Where the document is handed over and its nature is immediately apparent, no further explanation is required. Where it is enclosed in an unmarked envelope or is not accepted, the process server must leave it with or near the recipient and the recipient must acquire knowledge that it is a legal document requiring attention in connection with proceedings.
2. Meaning of leaving. Leaving requires relinquishment of control and sufficient possession for the recipient to exercise dominion over the document, however briefly. The first attempt failed because the process server retained control of the envelope throughout. The second attempt satisfied this requirement because the envelope was placed on or near the defendant and control was relinquished. Its subsequent retrieval did not invalidate service.
3. Knowledge of the document. The requirement that the recipient be told the nature of the document focuses on the recipient’s resulting knowledge, not merely the process server’s words. Knowledge may be inferred from translation, prior dealings and conduct, including attempts to evade service. The defendant’s companions communicated that the envelope contained High Court papers, and his conduct showed that he understood its nature.
4. Standard of proof. The claimant had to establish a good arguable case that service was effected. The enhanced Canada Trust formulation did not apply merely because the defendant was foreign-domiciled; domestic service within the jurisdiction should be assessed under the ordinary standard applicable to the issue.
5. The defendant was validly served inside the Gallery on 4 October 2014. The alternative applications under CPR 6.15 and 6.16 therefore did not require determination. The court nevertheless indicated that, absent valid service within the jurisdiction, it would not have been appropriate to circumvent the ordinary out-of-jurisdiction service provisions, particularly where the defendant was domiciled in a Hague Convention State.

Not stated in the judgment.