Recent clarifications to effecting personal service in England & Wales

The procedural rules of England & Wales allow for personal service of a Claim Form within in the jurisdiction on an individual, a company (through a senior person) or a partnership (through a partner) (Civil Procedure Rules 6.3 and 6.5.). They are some circumstances where personal service is obligatory (such as in the case of a bankruptcy petition under Rule 6.14 of the Insolvency Rules 1986) but otherwise it is an optional and often useful method of service.

The general rule is that any individual can be personally served in England or Wales, regardless of whether or not they reside in the country. Similarly, persons holding a senior position within a company or partners to a partnership may be personally served on behalf of their respective company or partnership. It is sufficient that the individual being served is in the jurisdiction of England or Wales (however temporarily) at the time they are served and accordingly personal service may be used as a method to serve foreign individuals or representatives of foreign companies or partnerships.

The rules provide very little information as to how personal service must be effected. They merely provide that service is effected by leaving the document with the individual in question. This has been clarified as meaning either:

• by handing the document to a person; or
• if it is not accepted by the person, by telling them what the document contains and leaving it near him (Kenneth Allison Ltd v AE Limehouse & Co [1992] 2 AC 105.)

A number of cases in England have recently clarified the position in circumstances where an individual seeks to avoid personal service being effected on him and refuses to take the document in his hands. (In particular, see the cases of Morby v Gate Gourmet Luxembourg IV SARL & Another [2016] EWHC 74 (Ch) and Tseitline v Mikhelson [2015] EWHC 3065 (Comm).)

In these circumstances it is essential that the individual is told what the document contains. This does not mean that the document must be read out in its entirety but enough information must be given to the individual to ensure that they are aware that it is a legal document which requires the individual’s attention in connection with the proceedings in question. The required knowledge may be inferred from pre-existing knowledge or from conduct at the time or after service, although it is always advisable to expressly inform the individual to be sure that the requirements have been met. (See in particular, Walters v Whitelock (Unreported, 19 August 1994) and Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506.)

Once this information has been given it is sufficient to leave the document on a surface near to the person to meet the test of it having been left near him. Placing the document on a person’s body part (such as the person’s chest) is sufficient for these purposes, as is placing it on the floor at their feet. The key question is whether the individual is given a sufficient opportunity to take possession of the document, even if it is later taken away. (Nottingham Building Society v Peter Bennett & Co (a firm) (The Times, 26 February 1997).)

On 20 January 2016 judgment was given in the case of Morby v Gate Gourmet (Morby v Gate Gourmet Luxembourg IV SARL & Another [2016] EWHC 74 (Ch)). The Court found that handing the document to a third party in the presence of the individual is also sufficient to meet the requirements of the test. In this case the individual in question, Mr Morby, had been accompanied by an assistant. The document was handed to the assistant in the presence of and with the agreement of Mr Morby. The assistant then attempted to return the document to the service agent in order prevent service and when the service agent refused to accept it, the assistant put the document in a nearby rubbish bin. The High Court held on appeal that personal service had been validly effected on Mr Morby. When the document was in the possession of the assistant, Mr Morby had a sufficient opportunity to take possession of it and it was therefore deemed to have been left near him. It is important to note that this case has not changed the general rule that personal service cannot be effected on an agent if the principal is not present at the time.

Where personal service is effected, it is essential that a Certificate of Service is filed with the Court within the necessary deadlines provided by the Civil Procedure Rules.

Practical steps in the context of personal service

• If you are a Claimant in proceedings in England & Wales, using the personal service method can be a simple and cost-effective of serving proceedings, particularly where the Defendant is a foreign individual or entity. It is essential that you use a reputable process agent to ensure that the process is carried out correctly and properly documented at the time. 
• If you, your company or partnership are a potential Defendant to proceedings in England & Wales, there are a number of matters you should consider:
  • You should be aware that personal service may be effected on you if you travel to England or Wales.
  • Senior business representatives / partners should be properly informed about the possibility of them being served on behalf of the company or partnership and how to react in these circumstances.
  • If someone seeks to effect personal service on you seek legal advice immediately.  Even in circumstances where you do not accept the document, it is possible that it has been validly served on you and that deadlines are running.  If you are later found by a Court to have been properly served and have not reacted within the required deadlines this make lead to judgment being made against you.