The serious consequences of an adjudication of bankruptcy against an individual has long justified the strict requirement that bankruptcy petitions be personally served. Rule 6.14 of the Insolvency Rules 1986 requires as much, and says that ‘service shall be effected by delivering to [the debtor] a sealed copy of the petition’. But what constitutes delivery where the debtor declines to accept the petition from the process server?

The House of Lords in Kenneth Allison Ltd v AE Limehouse & Co [1992] 2 AC 105, considering the case of a claim form, laid down the test that the person is personally served if he is told what the document contains, and it is ‘left with or near him’.

Held

In Morby v Gate Gourmet Luxembourg IV Sarl and another [2016] EWHC 74 (Ch) the court applied this test where a debtor attended a meeting arranged for the purposes of effecting service, together with a friend, but the petition was handed to the friend, who, having discussed its contents with the debtor, failed to hand it back to the process server, whereupon it was put in the bin. In Tseitline v Mikhelson [2015] EWHC 3065 (Comm), it was held that service was sufficiently effected where the document was placed on the recipient’s upper body, even though it then fell to the floor. But in Morby at no point did the debtor touch the petition himself. Although it is trite law that service on an agent is not personal service, the court found that where that agent accepts the document in the presence of the debtor, the document is ‘left with or near’ the debtor because it comes under his physical dominion, however briefly, through being handed to his agent, so the Kenneth Allison test is satisfied.