(Re)Insurance Weekly Update 39 - 2015

Author:Mr Nigel Brook
Profession:Clyde & Co

Welcome to the thirty-ninth edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2015

This week's caselaw:

Tseitline v Mikhelson

The meaning of "personal service" of a claim form


CPR r6.5 provides that a claim form can be served personally on an individual within the jurisdiction by "leaving it with that individual". However, the Rules provide no further guidance as to the interpretation of that provision.

In this case, two process servers approached the defendant one evening. The first held out an envelope (marked only with the printed name of the claimant's solicitors) containing the claim form and told him "I'm here to serve you papers as part of a High Court, a High Court claim". The defendant speaks little English. He took hold of one side of the envelope, but the process server held on to the other, and after the defendant's daughter spoke to him, the defendant released the envelope. The second process server subsequently placed the envelope underneath the defendant's arm, whilst telling him he was being served. The defendant then allowed the envelope to fall to the ground.

Phillips J held as follows:

(1) The House of Lords decision of Kenneth Allison Ltd v A.E. Limehouse & Co [1992] establishes that the process server must hand the relevant document to the person upon whom it has to be served. If the defendant refuses to accept it, the process server may tell him what the document contains and leave it with him or near him.

(2) A person can only "accept" the document if the nature of the document is readily apparent or known to the recipient or otherwise explained to him so that he can be taken to know its nature. If an unmarked envelope is given to a defendant without any explanation, he can regard it as junk mail.

(3) A document will be "left with" the defendant if the defendant has some degree of possession of it (even if the process server subsequently takes it away again).

(3) Where the defendant refuses to accept the claim form, the focus is on the knowledge of the recipient, not the process by which it is acquired. Whilst in most cases knowledge of the nature of the document will be found to have been imparted by a simple explanation, it is clear that it can be also readily be inferred from pre-existing knowledge, prior dealings or from conduct at the time of or after service.

Applying those principles to this case, the judge held that the first...

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