A claim form may be served personally on an individual by “leaving it with” that individual (CPR 6.5(3)). But what does that mean in practice? Does the claim form have to actually be handed to the defendant and what happens if the defendant simply ignores the process server and walks away? In Gorbachev v Guriev, the court considered whether a process server leaving the documents on the ground next to the defendant’s car constituted good service1.
The claimant appointed a process server to serve a claim form (and other documents). The process server found the defendant, Mr Guriev, with a group of associates on a street in London. An exchange took place between the process server and members of Mr Guriev’s group which resulted in the process server not handing the documents to Mr Guriev, but leaving them on the ground next to Mr Guriev’s car. Mr Guriev left the documents on the ground, got into the car and drove off. The claimant contended that this was good service of the claim form.
Mr Guriev claimed it did not amount to good service. He said that his limited understanding of English meant that he did not understand what the process server was saying or what was going on.
The events were recorded on a mobile phone by the director of the process servers.
As well as (written, not oral) witness evidence, the Judge in this case had the video evidence that the process server had recorded of the attempted service. After examining the evidence, the Judge decided that:
- It was clear that the process server was addressing Mr Guriev, as he used his name. In those circumstances, even if one did not understand the language being used, it would be clear that the remarks were being addressed to Mr Guriev.
- The video evidence clearly showed the process server saying “legal papers”.
- The process server said “Sir, can you take them?” and one of Mr Guriev’s associates, Mr Soliman, said “Don’t touch it”: the Judge said that the obvious reason for Mr Soliman saying this was that he realised that it was an attempt to serve the documents and that touching them might lead the court to find that good personal service had taken place.
- One of Mr Guriev’s associates, Mr Motlokhov, is seen looking at the papers left on the ground. The Judge thought it most likely that he was looking at a document which contained the words “important legal documents”, “commercial court” and “an issued claim form”. In those circumstances, he found that there was a sound evidential basis for finding that Mr Motlokhov knew of the nature of the documents, including that they were addressed to Mr Guriev.
- Mr Guriev did realise that this was an attempt to serve documents on him and he did have sufficient knowledge of the nature of the documents:
- Given the proximity of the process server to Mr Guriev, the overwhelming likelihood is that he would recognise his own name whether in Russian or English and it is therefore probable that he realised that the process server was seeking to address him rather than anyone else; and
- Mr Guriev was seen asking his associates “What does he want?” The Judge concluded that at least one of the associates would have answered the question and it would probably have been Mr Motlokhov and Mr Soliman, both of whom the Judge concluded understood what the process server was trying to do. That, together with the fact that some of his associates tried to stop the process server getting near to Mr Guriev led the Judge to conclude that Mr Guriev did know that service of court proceedings was being attempted.
The Judge summarised the law on personal service of a claim form on an individual:
- If the person on whom service is being attempted will not accept service, service can be effected by either handing the document to the person or by telling the person what the document contains and leaving the document with or near the person2.
- Knowledge of what the document contains is acquired by it being brought to the intended recipient’s attention: that it is a legal document which requires his/her attention, with the focus being on the knowledge of the recipient as opposed to the process by which is it acquired3.
- Once the recipient has a sufficient degree of possession of the document to exercise dominion over it for any period of time (however brief), the document has been “left with him”4. Once the recipient has gained possession it makes no difference that the person seeking to effect service may subsequently remove the document e.g. because the intended recipient has not taken the documents and has walked away5.
- The burden is on the claimant to show a good arguable case that service was effected. Where an issue of fact arises as to whether there is a good arguable case, the court must take a view on the evidence if it can reliably do so6. If the court cannot make a reliable assessment on the evidence, it is sufficient for the claimant to show a plausible evidential basis on the issue7.
The Judge held that where the claimant is able to show that the person to be served had sufficient knowledge of the nature of the documents and where, within the sight of the person to be served, the process server left the documents as close to that person as was possible given the attempts by those with the defendant to prevent him from getting any closer to the defendant, the court has sound material to conclude that the documents were left sufficiently near to the person to render good service.
The fact that there was video footage of the attempted service was obviously of great assistance to the Judge in this case, not least as the witness evidence was contradictory. The case does confirm, however, that a claim form does not have to be actually handed to the recipient for it to be properly served under CPR 6.5(3).
Where practitioners think that there could be issues with personal service of a claim form (such as the defendant wanting to avoid service), consider the following:
- Recording the service on a mobile phone (motion and sound);
- Avoid using an envelope in order that the documents that are being served are clearly visible and ensure that the top document that the defendant will see is clear on its face that it relates to legal proceedings;
- Ensure that the correct person is served by obtaining a recent photo before attempting service;
- Explain to the defendant that the documents relate to court proceedings; and
- Ensure that the claim form is left as close to the defendant as possible, and within their eyesight, if he/she refuses to take hold of the document.