The issue in this case was whether the defendant had been personally served (of a bankruptcy petition, although it was accepted that the same principles apply as for service of a claim form). CPR r6.5 provides that a claim form can be served personally on an individual by "leaving it with that individual". Reference was made to the decision last year of Tseitline v Mikhelson (see Weekly Update 39/15). There, it was held that a document is "left with" the defendant if he has some degree of possession of it (even if the process server subsequently takes it away). In an earlier case, Kenneth Allison v AE Limehouse [1992], the House of Lords held that the document could also be left near the defendant.

In this case, the document was given to the defendant's friend, who was with the defendant at the time. The friend then put it in a bin when the process server refused to take it back.

Was the document left with or near the defendant? The judge held that it was. When the document was in the hands of his friend, the defendant clearly had "a sufficient opportunity of possession of the document to enable him to exercise dominion over it for any period of time, however brief'. The defendant could have had the document at any time by simply asking is friend to hand it to him, or by retrieving it from the bin. The natural conclusion was therefore that the document had been left "near" or even "with" the defendant. Leaving the document with the friend was no different to leaving it at a table next to the defendant.

COMMENT: This case continues a trend of cases to seemingly relax the rules on personal service, in order to find that service has been effected where the defendant either has possession of the claim form for however short a period of time, or could have possession of it, should he choose to do so (and is aware of the nature of the document).