[1] In Kenneth Allison Ltd (In Liquidation) v AE Limehouse & Co [1992] 2 A.C. 105 [1991] 3 W.L.R. 671 ('Kenneth'), in the House of Lords (Lord Bridge, Lord Templeman, Lord Goff, Lord Jauncey and Lord Lowry), the question which lay at the heart of the appeal was (Lord Bridge, at 113):

'whether the provisions of the Rules of the Supreme Court which relate to the service of originating process constitute an exclusive code by which alone such service may be effected... or whether, if parties agree between themselves on a mode of service outside the ambit of the rules, service in that mode ("consensual service," as Lord Donaldson M.R. aptly called it) will, as he held, be effective'

Lord Bridge, with whom the others agreed, held, in essence, that if parties agree between themselves on a mode of service outside the ambit of the rules, service by that mode, will be valid service. In reaching that conclusion, Lord Bridge agreed with a passage from the judgment of Lord Donaldson MR in the Court of Appeal below in Kenneth. Lord Bridge in Kenneth, said, at 119-120:

'[Lord Donaldson MR] summed the matter up in words with which I entirely agree and on which I could not hope to improve when he said [1990] 2 Q.B. 527, 533-534:

"The rules are the servants of the courts and of their customers, not their masters, unless expressed in a wholly mandatory and exclusive fashion which these rules are not. It would be wholly contrary to the spirit of the times that the rules should be construed in a manner which would forbid parties to litigation to act reasonably with a view to eliminating or reducing the acerbities inevitable in litigation, when to do so creates no problems whatsoever for the defendant in terms of deciding precisely when service was effected for the purposes of the Limitation Acts or otherwise."'

Though this relates to the (now obsolete) RSC, seemingly, this should apply to the service of a bankruptcy petition under the CPR. Some support can be gleaned for this from the case of Re Mittal (also known as Allen v Mittal) [2023] EWHC 920 (Ch) ('Mittal') before Trower J, on appeal from a Deputy ICC Judge. One issue in Mittal was the method of service (service by email - CPR r.6.3(1)(d) and PD 6A, para 4.1 as applied by para 1(4) of Schedule 1 of the Insolvency (England and Wales) Rules 2016) employed to serve an application for an order, suspending a bankrupt's otherwise automatic discharge from bankruptcy after 1 year. Trower J noted, in relation to service methods available, for service of a suspension application, that:

'...it was also not in issue that the parties were free to reach an ad hoc agreement as to the method of service (Kenneth Allison Ltd v Limehouse & Co [1992] AC 105 at 106H to 107B).' (paragraph 35)

[2a] 'valid service', 'good service' and 'effective service' can be used interchangably. They mean delivery of documents - service - by mode/manner that qualifies as sufficient service, for the purposes of satisfying the service stage in litigation. The converse word phrases are, respectively, 'invalid service', 'bad service' and 'ineffective service', which can all be used interchangably - when there has been a failure to effect valid service. It can be said that personal service was 'effected on' the Intended Recipient (Morby, paragraph 8).

In Emmanuel v Revenue and Customs Commissioners [2017] EWHC 1253 (Ch); [2017] BPIR 1182, HHJ Walden-Smith sitting as a Judge of the High Court, said, at paragraph 36: 

'There is, of course, a difference between a party receiving a document and it being properly served.'

[2b] Strictly speaking, Phillips J in Tseitline v Mikhelson [2015] EWHC 3065 ('Tseitline') in misquoted the test in RSC order 65 r.2 (now obsolete), but that seems to be irrelevant:

(1) RSC Order 65 r.2 actually read: 'leaving a copy of the document with the person to be served'; where as,

(2) Phillips J in Tseitline said, at paragraph 14:

'In Kenneth Allison Ltd v A.E. Limehouse & Co [1992] 2 AC 105 the House of Lords considered what was meant by “leaving a document with the person to be served”...'

(3) 'leaving a document with the person to be served' is actually the test from the CCR;

In the author's view, nothing turns on this. The missing words 'copy of the' seem to be irrelevant here. 

[3] In Morby v Gate Gourmet Luxembourg IV Sarl [2016] EWHC 74, the deputy judge said, at paragraph 31, that:

'There is no reason to doubt that this two-limbed test also applies to CPR r 6.5(3), as was accepted by the parties and held by Phillips J in the Tseitline case.'

[4] In Morby v Gate Gourmet Luxembourg IV Sarl [2016] EWHC 74, the deputy judge said paragraphs 56 and 57, that:

'In re Anderson Owen Ltd [2010] BPIR 37, para 24 Norris J states: “The essential purpose of rules as to service is to ensure that a party has proper notice of proceedings brought and a fair opportunity to deal with them.”

'Although Norris J was concerned in that case with service of proceedings under section 212 of the Insolvency Act 1986, it is a concise statement of the essential purpose (although, as Norris J notes, there may also be other purposes) of rules as to service, including personal service, regardless of the nature of the proceedings. What varies according to the nature of the proceedings, and the precise circumstances, is the need for a more or less strict compliance with the rules of service. There is, however, no question that, in the circumstances of this case, the essential purpose of service has been achieved notwithstanding the putative “irregularity” of handing the document to Mr Malik rather than putting at [the Intended Recipient's] feet or somewhere else near him. Accordingly, there is no barrier as a policy matter to the application of rule 7.55 in these circumstances.'

In In re Anderson Owen Ltd [2010] BPIR 37, Norris J set out the other purposes to the rules on service, at paragraph 24 (paragraph 22 in original judgment - the original judgment erroneously repeats paragraph numbers 12 and 23 - which creates the two sets of paragraph numbers):

'24. 22. The essential purpose of rules as to service is to ensure that a party has proper notice of proceedings brought and a fair opportunity to deal with them. Of course, they might also have significance in other contexts e.g. in founding jurisdiction or enabling a claim to be brought within a limitation period. Whether the court should insist upon strict compliance with them will be influenced by all such considerations: and guidance as to how to weigh them can be found in CPR r.3.10.'

Note, however, that the judge in Morby later went on the find that r.7.55 (now r.12.64 of the 2016 Rules) could not be used to cure/remedy the fact that a bankruptcy petition had not been validly served, because the delivery was not in compliance with either Limb or Limb 2 of Kenneth:

(1) See the section in the main article entitled 'Rule 12.64 of the 2016 Rules - the Curative Provision - not available' for more details;

(2) Norris J, in In re Anderson Owen Ltd [2010] BPIR 37, found that r.7.55 was available to cure the invalid service of a s.212 of the Insolvency Act 1986 originating application. Paragraph 23. 21, after quoting r.7.55 of the 1986 Rules, he said 'In my judgment defective service is within the scope of this rule.'

It is somewhat unclear why r.7.55 (now r.12.64 of the 2016 Rules) is seemingly:

(a) available to cure invalid service of a s.212 of the Insolvency Act 1986 application, a commencement of process application; but

(b) not available to sure invalid service of a bankruptcy petition.

[5] For completeness, Insolvency (England and Wales) Rules 2016, Schedule 4, paragraph 1 in its entirety, provides:

'1 -

(1) This Schedule sets out the requirements for service where a document is required to be served.

(2) Service is to be carried out in accordance with Part 6 of the CPR as that Part applies to either a “claim form” or a “document other than the claim form” except where this Schedule provides otherwise or the court otherwise approves or directs.

(3) However, where a document is required or permitted to be served at a company’s registered office service may be effected at a previous registered office in accordance with section 87(2) of the Companies Act.

(4) In the case of an overseas company service may be effected in any manner provided for by section 1139(2) of the Companies Act.

(5) If for any reason it is impracticable to effect service as provided for in paragraphs (2) to (4) then service may be effected in such other manner as the court may approve or direct.

(6) The third column of the table below sets out which documents are treated as “claim forms” for the purposes of applying Part 6 of the CPR and which are “documents other than the claim form” (called in this Schedule “other documents”).

(7) The fourth column of the table sets out modifications to Part 6 of the CPR which apply to the service of documents listed in the first and second columns.

(8) Part 6 of the CPR applies to the service of documents outside the jurisdiction with such modifications as the court may approve or direct.'

Schedules 4 then contains provisions under the headings:

2 - Service of winding-up petitions

3 - Service of administration application (paragraph 12 of Schedule B1)

4 - Service on joint office-holders

5 - Service of orders staying proceedings

6 - Certificate of service [dealt with in the main body of the article]

There is then the Table of requirements for service.

[6] In Insolvency (England and Wales) Rules 2016, Schedule 4, paragraph 1(6) and (7) provide:

'The third column of the table below sets out which documents are treated as “claim forms” for the purposes of applying Part 6 of the CPR and which are “documents other than the claim form” (called in this Schedule “other documents”).

The fourth column of the table sets out modifications to Part 6 of the CPR which apply to the service of documents listed in the first and second columns.'

[7] Within Section I, there is also CPR r.6.2, entitled 'Interpretation', which reads:

'In this Part-

(a) “bank holiday” means a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where service is to take place;

(b) “business day” means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;

(c) “claim” includes petition and any application made before action or to commence proceedings and “claim form”, “claimant” and “defendant” are to be construed accordingly;

(d) “solicitor” includes any other person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act).'

[8] The general rule is that the bankruptcy petition must be served by personal service. But, the Court can order otherwise - that is, make an order for substituted service of the bankruptcy petition.

Prospective/Retrospective

(1) It is clear that an order for substiuted service can be made prospectively, that: if a mode/manner of delivery takes place in the future, this will amount to sufficient/qualifying service for the purposes of this stage of the litigation.

(2) It is tolerably clear that an order for substituted service can be made retrospectively:

(a) Under the 2016 Rules, CPR Part 6 applies (2016 Rules, Schedule 4, paragraph 1(2)). Part 6 contains r.6.15(2), which reads:

'On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.'

(b) This was not always the case. Under the 1986 Rules, Roth J in Ardawa v Uppal [2019] EWHC 456 (Ch) [2019] Bus LR 1075 ('Ardawa') held that an order for substituted service could only be made prospectively. As Fancourt J in Yu (also known as Law) v Cowley [2020] EWHC 2429 (Ch); [2021] BPIR 312 ('Cowley') pointed out about Ardawa:

'At that time, CPR Part 6 was entirely disapplied to the service of a bankruptcy petition ([Insolvency Rules 1986, para 12A.16(2)). Para 13.2 of the Practice Direction: Insolvency Proceedings of 2014 ("the PDIP") set out the steps that a creditor was expected to take in order to obtain an order for substituted service of a bankruptcy petition, which were specific and detailed.' [bold added]

And later, Fancourt J in Cowley said, at paragraph 24, that one of the reasons Roth J held as he did, was because of the (then) '...express exclusion of the whole of CPR Part 6 by IR rule 12A.16(2)', Fancourt J then commented:

'(The position is different under the new Insolvency (England and Wales) Rules 2016.)'

Indeed, Roth J in Ardawa had said, at paragraph 48:

'Part 6 of the CPR does not apply to the service of a bankruptcy petition: rule 12A.16(2) IR. Therefore, the retrospective order of District Judge Hickman could not be made under CPR r 6.15, and the lack of an equivalent provision in the applicable rule for service in the Insolvency Rules is striking.'

Fancourt J in Cowley later said, at paragraph 28:

'A power retrospectively to authorise something that furthers the overriding objective and causes no one detriment is always salutary.'

On 'steps already taken' - see: (1) R. (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, Carr LJ; and (2) Ideal Shopping Direct Ltd v Mastercard Inc [2022] EWCA Civ 14.

Threshold

There is a threshold for a substituted service order:

(1) Insolvency (England and Wales) Rules 2016, Schedule 4, paragraph 1(2) provides:

'(2) Service is to be carried out in accordance with Part 6 of the CPR as that Part applies to either a “claim form” or a “document other than the claim form” except where this Schedule provides otherwise or the court otherwise approves or directs.'

Paragraph 1(5) provides:

'If for any reason it is impracticable to effect service as provided for in paragraphs (2) ... then service may be effected in such other manner as the court may approve or direct.' [bold added]

(2) CPR r.6.1, entitled 'rules about service apply generally', provides:

'This Part applies to the service of documents, except where-

...

(b) the court orders otherwise.'

CPR 6.15 is entitled 'Service of the claim form by an alternative method or at an alternative place' and r.6.15(1) and (2) provide:

'Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service' [bold added]

Accordingly, it appears that there are 2 potential bases for the Court permitting service of a bankruptcy petition by a method other than personal service (i.e by substituted service):

(1) 2016 Rules, Schedule 4, paragraph 1(5) - Where (for any reason) it is impracticable to effect service of the bankruptcy petition in accordance with CPR Part 6, the Court can order that service may be effected in such other manner as the court may approve or direct; or

(2) CPR r.6.15 - Where it appears to the court that there is a good reason to authorise service by a method, the court may make an order permitting service by an alternative method.

It is moderately illuminating that in Re Mittal (also known as Allen v Mittal) [2023] EWHC 920 (Ch) ('Mittal'), an application was made, if service of a suspension application was invalid, seeking retrospectively an '...order pursuant to CPR 6.15 and/or Schedule 4 of the Insolvency (England and Wales) Rules 2016...' (paragraph 7) (the 'Service Application'). At first instance, a deputy ICC Judge held that such an application ought not to be granted, except in exceptional circumstances. On appeal, Trower J disagreed, holding in respect to the Service Application, at paragraph 93 of Mittal, that:

'Primarily, it was an application for retrospective validation of service by an alternative method for which the test is whether good reason has been shown, without the gloss of exceptional circumstances: Abela v Baadarani [2013] 1 WLR 2043 at [33].'

In the Practice Direction - Insolvency Proceedings, there is paragraph 12.7, entitled 'Service of bankruptcy petitions other than by personal service', and this provides guidance on what steps will likely demonstrate it has not been practicable to personally service the bankruptcy petition. Paragraph 12.7 provides:

'12.7.1 Where personal service of the bankruptcy petition is not practicable, service by other means may be permitted. In most cases, evidence that the steps set out in the following paragraphs have been taken will suffice to justify an order for service of a bankruptcy petition other than by personal service:

(1) One personal call at the residence and place of business of the debtor. Where it is known that the debtor has more than one residential or business addresses, personal calls should be made at all the addresses.

(2) Should the creditor fail to effect personal service, a letter should be written to the debtor referring to the call(s), the purpose of the same, and the failure to meet the debtor, adding that a further call will be made for the same purpose on the [day] of [month] 20[  ] at [ ] hours at [place]. Such letter may be sent by first class prepaid post or left at or delivered to the debtor’s address in such a way as it is reasonably likely to come to the debtor’s attention. At least two business days’ notice should be given of the appointment and copies of the letter sent to or left at all known addresses of the debtor. The appointment letter should also state that:

(a) in the event of the time and place not being convenient, the debtor should propose some other time and place reasonably convenient for the purpose;

(b) in the case of a statutory demand ...

(c) (in the case of a petition) if the debtor fails to keep the appointment, an application will be made to the Court for an order that service be effected either by advertisement or in such other manner as the Court may think fit.

(3) when attending any appointment made by letter, inquiry should be made as to whether the debtor is still resident at the address or still frequents the address, and/or other enquiries should be made to ascertain receipt of all letters left for them. If the debtor is away, inquiry should also be made as to when they are returning and whether the letters are being forwarded to an address within the jurisdiction (England and Wales) or elsewhere.

(4)  If the debtor is represented by a solicitor, an attempt should be made to arrange an appointment for personal service through such solicitor. The Insolvency Rules permit a solicitor to accept service of a statutory demand on behalf of their client but not the service of a bankruptcy petition.'

[9] For completeness, CPR rule 6.5, entitled 'Personal Service', in its entirety, provides:

'(1) Where required by another Part, any other enactment, a practice 6.5 direction or a court order, a claim form must be served personally.

(2) In other cases, a claim form may be served personally except-

(a) where rule 6.7 applies; or

(b) in any proceedings against the Crown.

(Part 54 contains provisions about judicial review claims and Part 66 contains provisions about Crown proceedings.)

(3) A claim form is served personally on-

(a) an individual by leaving it with that individual;

(b) a company or other corporation by leaving it with a person holding a senior position within the company or corporation; or

(c) a partnership (where partners are being sued in the name of their firm) by leaving it with-

(i) a partner; or

(ii) a person who, at the time of service, has the control or management of the partnership business at its principal place of business.

(Practice Direction 6A sets out the meaning of “senior position”.)'

[10] In the USA, an incorporated entity - a company - can go into bankruptcy. It is not the same in England and Wales. In England and Wales, a company cannot be made, or become 'bankrupt', nor can it enter 'bankruptcy'. Only individuals (i.e. humans - natural persons) can be made bankrupt in England and Wales. To summarise, in England and Wales, only:

(a) an individual (human - natural person) - can be adjudged bankrupt/become bankrupt, enter bankruptcy; and

(b) a company (legal person) - can enter liquidation / be made subject to a winding up order.

(bankruptcy and liquidation, as legal procedures/processes, are very similar but not exactly the same; there are important differences between the two)

[11] Seemingly, the issue is determined on the balance of probabilities. However, in Tseitline v Mikhelson [2015] EWHC 3065 ('Tseitline'), Phillips J recorded, at pararaph 35:

'It is common ground that it is for [claimant/serving party] to demonstrate a good arguable case that service was effected on [the intended recipient].'

But after some discussion (paragraph 36 and 37 - see below), Phillips J recorded that 'In any event, the parties were agreed that the precise formulation of the standard of proof was unlikely to be of significance in the present case...' (paragraph 38)

That discussion, at paragraphs 36 and 37 of Tseitline, was:

'36. [counsel for the intended recipient] submitted that, as [the intended recipient] is resident and domiciled abroad, the question of service goes to jurisdiction. Therefore, he submitted, in order to demonstrate a good arguable case the claimant must establish ‘a much better argument on the material available’ than the defendant, referred to as ‘the Canada Trust gloss' (Canada Trust v Stolzenburg (No.2) [1998] 1 WLR 547 CA at 555, approved by Lord Steyn in the House of Lords, [2002] 1 AC 1 at p.13). He accepted, however, that this was, from the outset, recognised to be a lower standard than the balance of probabilities and that the most recent decision of the Court of Appeal on the point (Aeroflot v Berezovsky [2013] 2 CLC 206 at para 50) expresses the view that the word ‘much’ should now be omitted from the test, requiring only that the claimant has the better of the argument.

37. However, the present case does not arise in the context of an application to serve a party out of the jurisdiction, but is a simple question of whether personal service was effected in the jurisdiction under domestic rules of service. I recognise that Langley J in Cherney v Deripaska [2007] I.L.Pr 49 appears to have regarded the Canada Trust gloss as extending to issues of personal service on a foreigner in the jurisdiction, but I can see no reason why the test for whether domestic service has been effected within the jurisdiction should differ depending on the domicile of the defendant. I am fortified in that conclusion by the observation of Longmore LJ in Kazakhstan Kagazy Plc v Arip [2014] EWCA Civ 381 at para 25 appearing to confine the Canada Trust gloss to applications for service out of the jurisdiction.'

See also, paragraph 43 of Tseitline.

[12] In Tseitline v Mikhelson [2015] EWHC 3065, Phillips J said, after quoting from Lord Bridge and Lord Goff in Kenneth, at paragraph 16:

'Both parties accepted that the above test, recognising a distinction between where a document is accepted (the first limb) and where it was not accepted (the second limb), was equally applicable to personal service under CPR 6.5(3).'

[13] For instance:

(1) In Walters, at paragraphs 14 and 15; and

(2) In Aylett, at paragraph 22;

(3) in Morby, paragraph 29;

(4) in Tseitline, paragraphs 14 and 15.

[14] Rule 6.14 of the Insolvency Rules 1986 was superseded by r.10.14 of the Insolvency (England and Wales) Regulations 2016

[15] In Morby, the deputy judge noted, at paragraph 31 that it had been urged upon him that '...the test for personal service of a bankruptcy petition must be particularly strictly applied given the very serious consequences of an adjudication of personal bankruptcy for an individual'. However, while noting that argument, the deputy judge in Morby, did not seemingly decide whether he agreed with that argument, or not.

[16] To give the full quotation, in Tseitline v Mikhelson [2015] EWHC 3065, Phillips J, at paragraph 24, said:

'If it has not been accepted, the case falls within the second limb of the test, where an explanation is required. The reason why an explanation is required under the second limb was itself explained by Hoffman LJ in Walters v Whitelock (Unreported, 19 August 1994):

“The purpose of the requirement that he be told is that he should not be able to say that he ignored the document on the grounds that it was simply junk mail or something which did not necessarily require his attention at all.”

That reasoning applies with equal force to a recipient who has been handed (and has taken) an unmarked envelope: in the absence of any explanation or other basis for knowing what it contained he might discard it as junk mail without ever appreciating its contents required his attention.'

[17] While not material, it is strictly more accurate to say that two copies of the injunction order were handed to Mr Jordan, each contained in a separate folder.

[18] In Tseitline v Mikhelson [2015] EWHC 3065, Phillips J, at paragraph 26, summarised Nottingham Building Society v Bennett, The Times, 26 February 1997 ('Bennett'):

'In that case a process server had handed documents to a partner of the defendant firm but, when the partner read them and objected to their form, took them back. The Court of Appeal rejected the contention that the documents had not been ‘left with’ the partner, Waite LJ stating:

“The Oxford English dictionary gives, as the primary meaning of the transitive verb ‘to leave’:

‘To cause or let remain’ and ‘to depart without taking’

There appears to be a difference between those two nuances of meaning, in that one describes the mere process of allowing to remain, and the other introduces an element of departure without removal. It is understandable, given those alternative senses of the verb, that the judge should have found it a difficult point. Was the concept of ‘leaving’ a document introduced by the Rule to be regarded in the former sense or the latter?

Once the intended recipient (assuming him to have required knowledge of its nature) has been given a sufficient degree of possession of the document to enable him to exercise dominion over it for any period of time however brief, the document has been ‘left with him’ in the sense intended by the Rule.”

[19] In Morby v Gate Gourmet Luxembourg IV Sarl [2016] EWHC 74, the deputy judge said, at paragraphs 32 and 33:

'In the Tseitline case..., paras 18, 19 Phillips J referred to and quoted from the case of In re A Debtor [1939] Ch 251, in which the Court of Appeal held that delivery of a bankruptcy petition in an envelope to the debtor without any indication of its contents was not valid service. In that case Sir Wilfred Green MR, at p 256, emphasised the importance of compliance with the “strict requirements which are to be found in the case of the service of writs and other documents under the rules of the Supreme Court”. In the passages quoted by Phillips J, Sir Wilfred Green MR was concerned with importance of the requirement that the nature of the documents being served be “brought to [the] mind” of the person be served. Otherwise, the “gravest injustice” could occur.

Phillips J, concluded, in paras 22–24, that this remains good law, and that the Kenneth Allison test must be read in that light.'

[20] The Court did not used to be quite so willing. In Re A Debtor [1939] Ch 251 ('Re A Debtor 1939'), the petitioner argued that, as the envelope was addressed to the debtor and was opened, it should be inferred that the contents of the petition had come to the knowledge of the debtor. That contention was rejected by Sir Wilfred Green MR at 257, in robust terms:

'I find it quite impossible to draw inferences of that kind in a matter of so strict a nature as service. It would be intolerable, and would lead to the gravest injustice, if a litigant who was desirous of bringing his opponent before the Court by proper process could satisfy the requirements of the law as to service by proving facts such as those and asking the Court thereon to draw an inference as to the crucial fact having happened, the crucial fact being the coming of the document into the hand of the person to be served in such manner that the nature of it is brought to his mind …'

But the law, even then, seemingly, recognised a difference between:

(1) mere opening (and inferring the requisite knowledge from that fact), and

(2) opening and being seen to inspect the documents.

Sir Wilfred Green MR in Re A Debtor 1939, at 257, said:

'I am not laying down any general rule as to the circumstances in which it may be possible to provide service notwithstanding delivery in a sealed envelope. For example, if the envelope were opened by the addressee in the presence of the server and the contents inspected, that would be one case.'

[21] In Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506 ('Hahn'), a bank was trying to serve in England a guarantor with a claim (writ). Lord Brightman said, at 508 (paragraphs 5 and 6):

'On 14 April 1987 a person acting on behalf of the bank's solicitors attended at [the Intended Recipient's] home with an envelope containing a copy of the writ. The door was opened by Mr. Symonds, the caretaker, who said that [the Intended Recipient's] was not there but might be arriving later in the day. The solicitors' representative then put the envelope containing the copy writ through the letter box and left. This occurred at about 15.30.

[The Intended Recipient and his wife] had left South Africa on 12 April en route for England and were due to arrive at Heathrow at about 17.30 on 14 April. Mr. Symonds and his wife had already prepared the flat for occupation by [the Intended Recipient and his wife] when the solicitors' representative called. Shortly thereafter Mr. Symonds drove to the airport to fetch [the Intended Recipient and his wife]. At the start of their journey home Mr. Symonds told [the Intended Recipient] that a man had called at the flat that afternoon and put through the letter box an envelope addressed to him, which Mr. Symonds stated he had not opened. On receiving this news, [the Intended Recipient] instructed Mr. Symonds to drive to the White Hart Hotel at Beaconsfield, where the car dropped [the Intended Recipient]. [The Intended Recipient's wife] continued on to the flat, where she was shown the envelope. She then returned to the White Hart at about 19.45, and both of them proceeded to the Holiday Inn near Heathrow for the night. [The Intended Recipient] left Heathrow the following day for Geneva, without having visited the flat then or at any later time in that year.'

Later in Hahn, Lord Brightman said, at 511-512 (paragraphs 17 and 18):

'[The Intended Recipient] was intending to drive to the flat. He is informed by Mr. Symonds of the existence of the envelope and of the circumstances of its delivery. He then changes course and does not go to the flat. But his wife goes there, looks at the envelope but does not open it. [The Intended Recipient] stays the night at a hotel near Heathrow and takes a flight out of England on the next day. Why did [the Intended Recipient] take such care to stay away from the envelope? Obviously an important envelope, because it was to his knowledge delivered by special messenger. Why did he not open the envelope or ask his wife to open it? Because he knew perfectly well what it contained. There is no other conceivable reason nor was [the Intended Recipient] counsel able to suggest one.

...the copy writ came to the knowledge of [the Intended Recipient] late in the afternoon of 14 April'

[22] In North Warwickshire BC v Aylett [2022] EWHC 2458 (KB), HHJ Kelly sitting as a Judge of the High Court, considered whether Limb 2 Part A was satisfied in relation to a Ms Aylett, one of the 3 'Just Stop Oil' protesters, occupying a tunnel. The claimant's employee was Mr Tobin, who had brought 2 folders with him (each containing a copy of the injunction order) to the tunnel, to personally serve. Mr Jordan, one of the other protesters, was by the entrance to the tunnel. The judge said, at paragraph 72:

'...Mr Tobin's conversation was directed solely at Mr Jordan. Ms Aylett was not told that she was being given documents or what those documents contained. At no time did Mr Tobin speak to Ms Aylett, direct Mr Jordan to pass on a message to Ms Aylett or ask her to come into the down-shaft to speak to him. Ms Aylett can be heard to say words to the effect that "it was changed" when Mr Jordan refers to the injunction. Given the depth of the tunnel and her position, I accept her evidence that whilst she could hear Mr Jordan's side of the conversation, it was difficult for her to hear what was being said by those above ground. In those circumstances, I am not persuaded that the claimant can prove beyond reasonable doubt that Ms Aylett was told what the document contained or that the document was left with or near her. I am not, therefore, satisfied as to personal service on Ms Aylett.'

[23] In North Warwickshire BC v Aylett [2022] EWHC 2458 (KB) ('Aylett'), HHJ Kelly sitting as a Judge of the High Court, dealt with whether there had been personal service (Kenneth Allison Ltd (In Liquidation) v AE Limehouse & Co [1992] 2 AC 105 [1991] 3 WLR 671, Limbs 1 and 2) on the (third) intended recipient, Callcum Goode, at paragraph 73 (Mr Tobin was the claimant employee; the 3 intended recipient Just Stop Oil protestors were, from closest to the tunnel entrance, to further in: Mr Jordan, Ms Aylett, then Callcum Goode)

'Callum Goode is further removed again from any dialogue between Mr Tobin and Mr Jordan. There is no evidence Callum Goode was handed any documents or that Mr Tobin directed any conversation to them or was even aware of their presence in the tunnel. The police evidence confirms that Callum Goode was the last person out of the tunnel, which is consistent with Callum's evidence of their location at the far end of the tunnel. I accept Callum Goode's evidence that it was around 6 or 7 horizontal metres from the entrance to the end of the tunnel. That is consistent with it being cramped but being long enough for 3 adults to lie end to end with room to store the significant volume of personal belongings that are seen on the video to exit the tunnel. Mr Tobin only left two copies of the documents with Mr Jordan, which I found he placed in the down-shaft. Not only were there insufficient copies for all three defendants, the documents were located at the opposite end of the tunnel to Callum Goode such that service of the kind recognised in limb 1 of Kenneth Allison is not made out. Furthermore, as with Ms Aylett, the claimant also fails to prove that Callum Goode was told what the documents contain or that the documents were left with or near him.'

[24] In Tseitline v Mikhelson [2015] EWHC 3065 ('Tseitline'), under the headig 'Whether [the intended recipient] was told what the documents contained', Phillips J went through why he found that the intended recipient had been told the nature of the document sought to be served on him, from his companions telling him what the documents were. At paragraphs 46 to 49, Phillips J in Tseitline said (Mr Harber and Mr Austin were the process servers):

'46. The second and more controversial question is whether [the intended recipient] was told what the documents contained. In his second statement [the intended recipient] acknowledged that, when Mr Harber attempted to serve him, he realised that Mr Austin and Mr Harber were together and acting in concert, so Mr Austin's actions and statements are an integral part in considering what [the intended recipient] was told.

47. Mr Austin spoke directly to [the intended recipient] on numerous occasions, in English, saying he was serving High Court papers and/or that the papers related to the High Court. It seems clear...that, if [the intended recipient] had been an English speaker, such information would have been sufficient to entail that he had been told what the envelope contained. He would have known that the documents inside were claim papers requiring his attention in relation to High Court proceedings.

48. Despite [the intended recipient's] protestations to the contrary, and those of his companions at the Gallery, I am entirely satisfied (well beyond finding there to be a good arguable case) that the gist of what Mr Austin had been saying had been communicated to [the intended recipient] by his English speaking companions by the time [the intended recipient] encountered Mr Harber, so that he fully appreciated that the envelope contained claim papers relating to court proceedings. In particular:

i) [the intended recipient] initially took hold of the envelope willingly and apparently without reservation, in what was at that stage a calm and civilised encounter with Mr Austin, who was smartly dressed and entirely polite and reasonable. It was only after asking his daughter what the envelope was that [the intended recipient] loosened and then released his grip. Whilst nothing is picked up on the recording, I infer that Victoria Mikhelson told him, quietly and in Russian, what was happening. At the very least an indication appears to have been given that he should not accept the envelope.

ii) [the intended recipient] then sought to ignore Mr Austin, telling his daughter not to listen to him. That would have been strange behaviour if [the intended recipient] genuinely did not understand what Mr Austin was attempting to give to him, particularly as he accepted in his evidence that he appreciated that it was to do with his business.

iii) By the time the group entered the Gallery, Mr Austin had spoken directly to Victoria Mikhelson and made it plain that he had High Court papers for her father, something he repeated to Ms Mavica. It is inconceivable that that information would not have been communicated to [the intended recipient] when he spoke with his daughter, Ms Mavica and his interpreter in the foyer of the Gallery, if he had not already been so informed.

iv) [The intended recipient]  subsequent conduct, clearly attempting to evade the service of the envelope by Mr Harber and telling him to go away, confirms my conclusion that he knew that the envelope contained court papers.

v) Perhaps even more revealing is that other persons present were astute to ensure that the envelopes were not retained by anyone connected with [the Intended Recipient], demonstrating that word to that effect had been spread amongst the attendees.

vi) [The intended recipient]...sought to explain his behaviour on the basis that he considered Mr Austin and Mr Harber had an aggressive demeanour and he felt threatened. The video recording does not support that characterisation. [The intended recipient] further suggested that he had no understanding of what was taking place. However, there was nothing to prevent [the intended recipient] asking Mr Austin, through his daughter or his interpreter, what he wanted. The clear and obvious inference is that he did not do so because he had already been told.

49. I therefore find that [the intended recipient] was told the nature of the document being served in the presence of persons who could be expected to and did translate what was said to him. Further, I find that he thereby acquired knowledge of its nature.'

[25] In Tseitline v Mikhelson [2015] EWHC 3065, Phillips J said, at paragraph 41:

'In my judgment, a process server who does not release the relevant document and retains control of the document at the end of the purported service cannot be said to have ‘left’ the document with the person to be served. The process server has not completed the process of handing the document to the person to be served (the basic requirement specified in Kenneth Allison) and the intended recipient has not been given a sufficient degree of possession of the document to enable him to exercise dominion over it for even a short period of time (as required by the test propounded in the Nottingham Building Society case). On any analysis, the term ‘leaving with’ connotes relinquishing control of the document, something [the process server] simply did not do outside the Gallery. That is, in my view, the short and complete answer to the contention that service was effected outside the Gallery. That attempt did not amount to valid personal service.'

[26] In Kenneth Allison Ltd (In Liquidation) v AE Limehouse & Co [1992] 2 AC 105 [1991] 3 WLR 671, Lord Bridge gave the lead judgment. Apart from Lord Goff, the other Law Lords simply agreed with Lord Bridge. Lord Goff agreed with Lord Bridge on the question whether what happened, amounted to personal service or not, at 124, where Lord Goff said:

'[Counsel for the claimant] advanced three arguments. First, he submitted that what occurred did amount to personal service....

Like...Lord Bridge...I am satisfied that [counsel for the claimant's] first submission must fail.'

[27] In Kenneth Allison Ltd (In Liquidation) v AE Limehouse & Co [1992] 2 AC 105 [1991] 3 WLR 671, Lord Goff gave this description of the factual scenario under consideration, at 120:

'On 4 October 1988 [the process server], an inquiry agent instructed by the plaintiffs' solicitors to effect personal service of the writ, attended at the defendants' office. There he met Mrs. Morgan, the secretary and personal assistant to Mr. Hall, the senior partner of the defendants. He told her that he wanted to serve a writ, and showed her the sealed copy he had with him. She said that before she could accept it she would have to refer the matter to a partner. She then went upstairs and spoke to Mr. Hall, who authorised her to accept it. She returned downstairs and told [the process server] that she was authorised to accept the writ. [the process server] then handed her the copy of the writ and the form of acknowledgment of service. At his request, she gave him her name. Nothing was said about her position in the firm. That is all that happened.'

It is right to note that none of the other Lord Laws expressed agreement with Lord Goff's speech in Kenneth, but on this point (whether what occurred did amount to personal service) Lord Goff simply agreed with the view taken by Lord Bridge. Lord Goff differed from the rest of the Law Lords as to:

(1) whether service by a method not in the rules of court, but agreed upon between the parties, can be good service. Lord Goff said, at 126:

'First of all, as it seems to me, effect must be given to the rules of court in accordance with their terms. Here, the rules of court do indeed provide a comprehensive code, with a mandatory rule of personal service subject to certain specified exceptions. Such service alone constitutes good and effective service for the purpose of the rules of court.' [bold added]

(2) whether Montgomery, Jones & Co. v. Liebenthal & Co. [1898] 1 Q.B. 487 was good law. He said, at 126:

'With all respect, I feel unable to accept earlier authority in so far as it suggests that any different form of service, for example such service in accordance with an agreement between the parties (otherwise than as permitted by the Rules), can constitute good and effective service.'

(3) whether an estoppel would arise in such a situation:

'...what has passed between the parties may have the effect that one party, upon whom service has been effected by the other otherwise than in accordance with the rules, may be estopped from asserting as against the other that such service is ineffective. This would occur where ... the party served has represented that he will treat the service as good service and it is inequitable for him to go back upon his representation; a fortiori will it be the case where, as in Montgomery, Jones & Co. v. Liebenthal & Co., it had been agreed between the parties that service in a certain manner should be deemed to be good and effective service.'

Lord Goff in Kenneth also said, at 126-127:

'I have naturally been concerned that, since the Rules provide a comprehensive code and embody (in Ord. 2, r. 1) a discretionary power which is specifically directed to enabling the court to deal, in its discretion, with those cases in which there has been a failure to comply with the terms of the Rules, it can be said that, as a matter of construction of the Rules, that power alone can be invoked by a party for that purpose, with the effect that he cannot invoke the principle of estoppel. There is force in that proposition; and on that basis [counsel for the Intended Recipient] was able to submit, first, that Ord. 2, r. 1 was not in its terms wide enough to provide for the circumstances of the present case, and secondly, that the court should not in the exercise of its discretion assist the plaintiffs who found themselves in their present predicament because they left the service of the writ to the last possible moment. However, as it seems to me, the principle of estoppel is essentially a principle of justice. For my part I would not hold it to be excluded unless public policy so requires; and, despite the argument of [counsel for the Intended Recipient] in which he stressed that questions of service affected the administration of justice itself, I do not consider that public policy does here require the exclusion of the principle of estoppel.

What he then did, is find a new basis, namely of common mistake. Lord Goff in Kenneth said, at 127:

'For what in reality happened was that both Mr. Hall and the plaintiffs (acting through their agent [the process server]) proceeded on the common but mistaken assumption that service of the writ upon the duly authorised agent of Mr. Hall would constitute good and effective service upon the defendants. Furthermore it is legitimate to infer that the course of action of [the process server] was influenced by the adoption by both parties of that common mistaken assumption in that, if they had not proceeded on the basis of it, [the process server] would in all probability not have been content with service upon Mrs. Morgan but would have asked to serve the writ upon Mr. Hall personally, and there is no reason to suppose that that request would have been refused. On these facts, in my opinion, the defendants will be estopped by convention from thereafter contending that there was not good and effective service of the writ upon them, on the principle established in Amalgamated Investment & Property Co. Ltd. v. Texas Commerce International Bank Ltd. [1982] Q.B. 84'

[28] In Kenneth Allison Ltd (In Liquidation) v AE Limehouse & Co [1992] 2 AC 105 [1991] 3 WLR 671,

(1) it was conceded that:

(a) the decision of the Court of Appeal in Montgomery, Jones & Co. v. Liebenthal & Co. [1898] 1 Q.B. 487 ('Montgomery') was correct (see below); and that, accordingly,

(b) the parties to a contract could validly agree that a party to the contract could use a different mode/manner of service than stated as permitted in the court rules ('Contractual mode/manner of service'). And that if a document was served in accordance with that Contractual mode/manner of service, it would be good service (despite the mode/manner of service not being one stated as permitted by the rules of court).

(2) What counsel in Kenneth tried to argue (unsuccessfully) was that proposition expounded in Montgomery was limited. That:

(a) the Montgomery proposition applied only to an agreement contained in a contractual term;

(b) the Montgomery proposition did not extend to an 'ad hoc agreement made in relation to other contemplated proceedings' (Lord Bridge, at 116), which is the scenario that had occurred in Kenneth. That in Montgomery, 'The illustration given by Chitty L.J. of the plaintiff validly serving a writ on the defendant's wife at the request of her sick husband to avoid the inconvenience of personal service is said to have been obiter and wrong.' (Lord Bridge, at 116)

To aid understanding, it will be helpful, to set out the quotations extracted by Lord Bridge in Kenneth, from Montgomery. Lord Bridge, at 115 to 116, said:

'[Montgomery] was another case between an English company and a Scottish company. Their contract provided that, for the purpose of any legal proceedings arising out of the contract, service of proceedings on the Scottish company should be effected by "leaving the same at the office of the London Corn Trade Association" and posting a copy to the company in Scotland. The English company issued a writ to enforce an arbitration award in their favour by the London Corn Trade Association and served it in the manner provided by the contract. The Scottish company's application to set aside the service of the writ was refused by the judge in chambers and the Court of Appeal dismissed their appeal. Counsel for the defendants argued, at pp. 488-489:

"Service must be effected according to the rules, and no service is valid unless it is so effected. It is not competent to the parties to contract that a different mode of service shall be adopted: British Wagon Co. Ltd. v. Gray [1896] 1 Q.B. 35."

A. L. Smith L.J. said, at p. 491:

"The question arises whether that agreement as to service is or is not a valid agreement. The writ, as I have said, has been served in the manner in which the parties agreed that it should be served. The defendants, nevertheless, say that there has been no effective personal service upon them, because the agreement as to service is invalid. To my mind that point is not tenable. I can see nothing in the rules to prevent the parties from agreeing to such a course of proceedings, and I can find no case in the books which shows that such an agreement as that made in this case is invalid."

Chitty L.J. said, at pp. 493-494:

"There remains the question, which is the main question in the case, whether the agreement as to the service is a valid agreement or not. The argument is that the service was not effected according to the rules, and is therefore void. In my opinion the distinction pointed out between this case and the case of the British Wagon Co. Ltd. v. Gray is a sound one. In that case the court was dealing with Order XI, which, as has been said, contains a complete code governing service out of the jurisdiction. The court can only allow service out of the jurisdiction in the cases there specified, and rule 1(e) of that Order shows at once that the court has no jurisdiction, in the case of a contract to be performed within the jurisdiction, to allow service out of the jurisdiction on a person who is domiciled or ordinarily resident in Scotland or Ireland. So that the court there had to deal with an express prohibition as to service out of the jurisdiction. There is no such provision applicable to this case. I do not propose to travel through the rules. I can find no rule which prohibits a person from agreeing as to the mode in which service may be effected on him, as, for instance, by the writ being left with his wife or with some other person. If the contention of the defendants is correct, a person who is ill cannot make a request that the plaintiff should hand the writ to his wife, but must endure the inconvenience of being served personally, otherwise the service will be bad as being in contravention of the rules. I cannot find that in any of the rules. This case comes within the principle of the decision of the Divisional Court in Tharsis Sulphur and Copper Co. Ltd. v. Societe des Metaux, 60 L.T. 924, and I see no reason for differing from the judgment of Field J. in that case. That learned judge thought it clear upon principle that a person might appoint another as agent to accept service for him, and might enter into a contract that the agent should be the person to accept service, and that service upon that agent should be good service upon himself. That seems to me to be good sense. This case falls within the principle there laid down, and I can find no rule which avoids any such agreement."

Collins L.J. said, at p. 494:

"In the present case the parties have put into operation the machinery as to service which they themselves have provided, and now when that machinery has been put into operation the defendants ask the court to treat that agreement as non-existent, and to set aside the service. I do not think we can do that. There is no prohibition, express or implied, in the rules against their coming to such an arrangement."'

Then Lord Bridge in Kenneth, at 116, noted the concession made in Kenneth by counsel for the defendant chartered accountants:

[Counsel for the defendant chartered accountants] accepts that this case was rightly decided, but submits that the principle of the decision must be limited in its application to cases where an agreement as to mode of service is embodied in a wider contract and provides for the institution of proceedings relating to that contract. It does not apply, he submits, to an ad hoc agreement made in relation to other contemplated proceedings which simply provides how service of the writ in those proceedings is to be effected. The illustration given by Chitty L.J. of the plaintiff validly serving a writ on the defendant's wife at the request of her sick husband to avoid the inconvenience of personal service is said to have been obiter and wrong.'

Lord Bridge in Kenneth then held, at 116 - 117:

'I can see no good reason in principle for making this distinction. If the rules in force in 1898 did not, as all three Lords Justices held, prohibit the parties to the contemplated litigation from effecting service in a manner agreed between themselves, I can see no ground for saying that an ad hoc agreement specifically relating to mode of service and nothing else would at that date have been any less effective for its purpose than an agreement embodied in a wider contract. Indeed, so far from regarding the example given by Chitty L.J. of service by agreement on the sick defendant's wife as an aberration, I think the example was adduced by him as an a fortiori case which illustrated and emphasised the untoward practical consequences which would result from giving the rules with respect to service the restrictive and exclusive effect contended for by the defendants.

I do not see any difficulty in holding that the kind of ad hoc agreement in question is legally effective. If one party, knowing that another wishes to serve process upon him, requests or authorises the other to do so in a particular way which is outside the Rules and the other does so, then, unless the Rules themselves prohibit consensual service, the party so served cannot be heard to say that the service was not valid. Thus, I have no doubt that, if the circumstances of the present case had come before the court in 1898, the validity of the service would have been affirmed. The crucial question is whether subsequent changes in the Rules of the Supreme Court have introduced just such a prohibition of consensual service outside the Rules as was unsuccessfully contended for in [Montgomery]'

After considering the post 1898 rule changes to the (now obsolete) RSC, Lord Bridge concluded that no subsequent RSC change introduced a prohibition on consensual service outside the Rules. On the facts, Lord Bridge in Kenneth held, at 119, that consensual service had been effected within time ('Consensual service was effected on the last date possible before the plaintiffs' claim became statute-barred.').

[29] In Tseitline v Mikhelson [2015] EWHC 3065 ('Tseitline'), Phillips J described that events in more detail, at paragraphs 7 to 10 (Mr Harber and Mr Austin were the process servers):

'7. [The Intended Recipient's] uncontested evidence is that he rarely travels to the UK, but was in London from 3 to 5 October 2014, having arrived on a private chartered flight from Moscow at about 4pm on Friday 3 October. The main purpose of his visit was to attend a private reception at the Gallery the following evening to mark the opening of an exhibition organised by the V-AC foundation, of which [the Intended Recipient] is the founder and president. The foundation is named after his daughter Victoria, who had arrived in London earlier on 3 October from New York, where she lives and studies Art History. Victoria Mikhelson is a fluent English speaker, having lived in London as well as New York. [The Intended Recipient] spent Friday evening with his daughter, Teresa Mavica (the director of the V-A-C foundation), various acquaintances and his interpreter, Ekaterina Burgess.

8. On Saturday 4 October [the Intended Recipient] and his daughter were chauffeur-driven to the Gallery, arriving outside at about 6.20pm. Awaiting their arrival were the two process servers, Paul Austin and Darren Harber, each in possession of an envelope, marked only with the printed name of Mr Tseitline's solicitors. The envelope contained a sealed copy of the amended claim form (with certified Russian translation) and the response pack, together with a covering letter in English and Russian. Mr Harber also held in his hand a covert camera, the size of a key fob, with which he recorded what he could of the process which then ensued of attempting to effect personal service on [the Intended Recipient]. At the invitation of the parties I have viewed Mr Harber's video recording and considered the parties' respective attempts to transcribe what can be heard on that recording. Mr Austin, Mr Harber and Ms Burgess have each made one witness statement and [the Intended Recipient], Victoria Mikhelson and Teresa Mavica have each made two witness statements giving their version of events.

9. The events which occurred outside the Gallery are relatively clear from the video recording. They can be summarised as follows:

i) After [the Intended Recipient] had alighted from the rear driver's side door and was standing in the road by the boot of car, he was approached by Mr Austin, who held out his envelope, saying “I'm here to serve you papers as part of a High Court, a High Court claim. We're here to serve you [the] claim papers”. Mr Harber filmed the exchange from the other side of the car.

ii) As Mr Austin spoke, [the Intended Recipient] took hold of one side of the envelope in his right hand, whilst Mr Austin retained his hold of the other side of the envelope.

iii) At the same time Victoria Mikhelson walked round the back of the car to join [the Intended Recipient] and Mr Austin. [The Intended Recipient] looked at his daughter and said “A chto eto takoe?” (translation: What is this?). No response from Victoria Mikhelson is audible, but [the Intended Recipient] loosened his grip on the envelope so that he held it between his index and middle fingers of his right hand, and then he released the envelope altogether, leaving Mr Austin holding it alone. At no point during this exchange did Mr Austin let go of the envelope.

iv) [The Intended Recipient] and his daughter then walked towards an entrance to the Gallery, where they were directed to another entrance. As they walked, Mr Austin remained beside [the Intended Recipient], stating several times that he was there to serve papers “as part of a High Court” and that [the Intended Recipient] needed to take them. On three occasions [the Intended Recipient] said to Mr Austin, in English, “Speak only Russian”.

v) As [the Intended Recipient] and his daughter walked past the entrance to Whitecapel underground station, en route to the second entrance to the Gallery, Mr Austin said to Victoria Mikhelson “Can [or Could] you give these to your father, he needs to take these. These are part of a High Court, the High Court. You need to give these to your father”. [The Intended Recipient] said to his daughter “Ne slushay ego” (translation: “Don't listen to him”). As they entered the Gallery, Mr Austin said “You need to take these. You've now been served” [possibly adding with High Court papers].

10. Mr Austin and Mr Harber accompanied [the Intended Recipient] and his daughter as they entered the Gallery, walking through a short passageway to the foyer. At this point the video recording became less steady as Mr Harber took out his envelope containing the documents for service. Further, given Mr Harber's proximity to a number of other people and his own close involvement as described below, he was unable to capture all of the relevant events in the recording. However, the following is apparent:

i) [The Intended Recipient] and his daughter joined Teresa Mavica and Ekaterina Burgess, who had been waiting for them in the Gallery. They spoke in Russian, although their words were not caught on the recording. Mr Austin stood next to them. Ms Mavica accepts that she heard Mr Austin say that he was there to serve papers: Mr Austin states that he referred to serving High Court papers.

ii) [The Intended Recipient] then walked away from the group and encountered Mr Harber at very close quarters, telling him (in Russian) to “go away”. Although not captured by the recording, it is common ground that at this point Mr Harber attempted to serve the envelope on [the Intended Recipient]. Mr Harber states that he placed it “in between the crook of [the Intended Recipient's] arm and his body where it lodged after I let it go”. Mr Austin states that Mr Harber “thrust the envelope … into [the Intended Recipient's] chest/arms … As [the Intended Recipient] walked away from us he threw the envelope … to the floor.” [the Intended Recipient], in his second witness statement, says that Mr Harber “tried to shove the envelope behind my lapel, but it fell to the floor”. Ms Mavica states, in her first statement, that Mr Harber “tried to place an envelope … against [the Intended Recipient's] chest … [the Intended Recipient] … opened his arms so that the envelope fell on the floor”.

iii) Although not apparent from the video, it is clear that [the Intended Recipient] then walked through a door from the foyer into the ground floor of the Gallery. Mr Austin states that he threw his envelope after [the Intended Recipient], but that it hit the door as it closed and so Mr Austin picked it up.

iv) Meanwhile Mr Harber picked up the envelope he had attempted to serve on [the Intended Recipient] and lodged it between Victoria Mikhelson's back and her shoulder bag, in which position it can be seen on the video. That envelope fell to the floor, where it was picked up by a woman in a white jacket, but something was said or indicated to her, causing her to place it back on the floor. Mr Austin then picked up that envelope as well. He and Mr Harber then left the Gallery.

[The Intended Recipient's] evidence is that, as he does not speak English and as nobody translated what was being said to him, at no point did he know or even suspect that ‘the ambush’ by Mr Austin and Mr Harber had anything to do with English legal proceedings, let alone that it was an attempt to serve him with legal documents. Mr Austin, on the other hand, states that there were exchanges between [the Intended Recipient] and his daughter in Russian which were not picked up on the video recording and that it was plain to him, from [the Intended Recipient's] reactions, that [the Intended Recipient] understood what was taking place.'

Under the heading 'whether service was validly effected', Phillips J reasoned:

'(a) By Mr Austin, outside the Gallery

39. [Counsel for the claimant/serving party] contended that [the intended recipient] was personally served with the claim form whilst standing by his car outside the Gallery. Two issues arise in relation to that contention. The first is whether the document was indeed ‘handed to’ [intended recipient] or otherwise left with him. The second is whether the document was in any event served given that it was contained in an envelope and Mr Austin's explanation of its contents was in English. Given my conclusions as to the relevant law relating to service of a document in an unmarked envelope, it would be necessary to be satisfied that [the intended recipient] acquired knowledge of the nature of the contents of the envelope.

40. As to the first issue, although Mr Austin proffered the envelope to [the intended recipient] as they stood by the car outside the Gallery, and although [the intended recipient] took hold of it for a few seconds before releasing his grip, Mr Austin at all times retained his own hold on the envelope and was left holding it at the end of the episode.

41. [Counsel for the claimant/serving party] submitted that, in those circumstances, the document had been handed to [the intended recipient] and was within his control. I do not agree. In my judgment, a process server who does not release the relevant document and retains control of the document at the end of the purported service cannot be said to have ‘left’ the document with the person to be served. The process server has not completed the process of handing the document to the person to be served (the basic requirement specified in Kenneth Allison) and the intended recipient has not been given a sufficient degree of possession of the document to enable him to exercise dominion over it for even a short period of time (as required by the test propounded in the Nottingham Building Society case). On any analysis, the term ‘leaving with’ connotes relinquishing control of the document, something Mr Austin simply did not do outside the Gallery. That is, in my view, the short and complete answer to the contention that service was effected outside the Gallery. That attempt did not amount to valid personal service.

42. The second issue therefore does not strictly arise for decision. However, it will be apparent from the discussion below that I am satisfied that [intended recipient] , despite not speaking English, acquired knowledge of the nature of the documents in the envelope when Mr Austin proffered that envelope to him whilst they were standing in the road outside the Gallery. Had Mr Austin released the envelope before [intended recipient] let go of it himself, it would have amounted to good personal service of the claim form.

(b) By Mr Harber, inside the Gallery

43. By the time [intended recipient] encountered Mr Harber in the foyer of the Gallery it was plain that [the intended recipient] was not willing to and did not accept the envelope. It is therefore necessary for Mr Tseitline to establish a good arguable case, within the second limb of the test in Kenneth Allison, that (i) the envelope was left with or near [intended recipient] and (ii) he was ‘told’ what it contained, in the sense discussed above.

(i) Whether the envelope was left with or near [the intended recipient]

44. On the first aspect, Mr Harber's actions, no matter which version is most accurate, clearly amounted to leaving the documents with or near [the intended recipient]. The envelope was placed on [the intended recipient's] upper body and fell (or was thrown by him) to the ground by his feet, so there is no doubt that it was left near him and that Mr Harber had relinquished control of the envelope to him. An almost identical process was regarded as ‘leaving’ the document in Walters .

45. As indicated above, [counsel for the intended recipient] argued that, because Mr Harber picked up the envelope and lodged it between Victoria Mikhelson's back and her bag whilst [the intended recipient] was walking away, it was not left with him. For the reasons given above, in particular the reasoning in Nottingham Building Society, it matters not if documents are taken away by the process server if the recipient had sufficient control as to be able to exercise dominion over them, even for the briefest period: the documents have been left with the person being served.'

[30] In Gorbachev v Guriev [2019] EWHC 2684 ('Gorbachev'), the Judge left open, at paragraph 66, the legal question of: whether Limb 2 Part B can be satisfied if the documents were not dropped in the eyesight of the person to be served. The point did not arise in Gorbachev, as the document was dropped within eyesight of the Intended Recipient, so the judge in Gorbachev did not need to address it/resolve the legal question (paragraph 66).

[31] Morby v Gate Gourmet Luxembourg IV Sarl [2016] EWHC 74, the judge said, at paragraph 37:

'...is the second limb of the Kenneth Allison test satisfied in this case? The second limb requires that (i) the person being served “be told what the document contains”, and (ii) the document be left with or near him.'

[32] In Gorbachev v Guriev [2019] EWHC 2684 ('Gorbachev'), the Judge elaborated on this. At paragraphs 31 and 32, he said:

'Green LJ in Kaefer v AMS Drilling [2019] EWCA Civ 10 considered the decisions of the Supreme Court in Brownlie v Four Season Holdings [2017] UKSC 80 and Goldman Sachs v Novo Banco SA. In his judgment, he states that the reference by the Supreme Court in Goldman Sachs to showing a "plausible evidential basis" on disputed factual issues addresses the situation where the court cannot make clear findings on the evidence and "moves away from a relative test and in its place introduces a test combining good arguable case and plausibility of evidence." He goes on, "Whilst no doubt there is room for debate as to what this implies for the standard of proof, it can be stated that this is a more flexible test which is not necessarily condition upon relative merits".

I am bound by the decision in Goldman Sachs. The [intended recipient] is right that the starting position is to assess whether the [serving party] has the better argument on a particular issue. But I am not obliged to limit findings favourable to the [serving party] to those issues where he can show that he has the better case of the two parties. Where I am concerned with what I can see or hear on the footage, I can easily make that assessment. In other respects, I am asked to look at why the [intended recipient] and his witnesses behaved in the way that they did and whether that behaviour supports a finding that their knowledge or motive was different to what is asserted in their respective witness statements. In those cases, it is unlikely to be possible to make the kind of firm assessment of who has the better of the evidence without having heard the witnesses give oral evidence. Where I simply cannot say from the material before me who has the better of the evidence, I should look at the plausibility of that evidence and whether a good arguable case can be made out based upon it. That is the test that I have applied in this judgment.'

Instances where a 'plausible evidential basis' was found, include:

(1) After setting out some points about the written evidence of some of the intended recipient's associates' accounts of the key incident, the judge in Gorbachev said, at paragraph 51:

'Without having heard cross examination of these witnesses, I cannot safely conclude that all or any of them are lying, though I have a strong suspicion that this is so. Certainly, there is a plausible evidential basis for concluding that this is so...'

(2) as to whether the intended recipient realised that there was an attempt going on to serve him with papers, the judge in Gorbachev said, at paragraph 52:

'Without hearing oral evidence on this issue, it is difficult to assess who has the better of the evidence on this issue. However in my judgment, there is a plausible evidential basis for concluding that [the intended recipient] did realise that this was an attempt to serve papers upon him.'

One reason for concluding this, was, at paragraph 52(ii), that:

'ii) ...[the intended recipient] says "What does he want?" in Russian. Once [the intended recipient] had asked that question, it is likely that it would be answered by someone. It is apparent from the footage that some discussion takes place at least amongst those next to [the intended recipient], if not [the intended recipient] himself, the detail of which cannot be made out - it is not possible to make out precisely who speaks, when or in what language. This provides a plausible evidential basis for concluding that at least one of the people with [the intended recipient] who spoke better English (Mr Motlokhov and Mr Soliman) would have answered his question. For the reasons given above, there is a plausible evidential basis for concluding that both of those men understood what [the process server] was trying to do. It follows that there is a plausible evidential basis for concluding that one or both of them told [the intended recipient] what [the process server] was seeking to do.'

For completeness, it might be helpful to set out the extract from Goldman Sachs v Novo Banco SA [2018] UKSC 34, paragraphs 8 and 9:

'8. On 26 February 2015, the claimants commenced the present actions against Novo Banco in the High Court in England for sums due in respect of the Oak loan. The basis of their claims was that liability on the Oak facility had been transferred to Novo Banco by the Central Bank's decision of 3 August 2014. On that footing, Novo Banco was bound by the jurisdiction clause in the facility agreement. Novo Banco countered by applying to set aside service of the claim forms in both actions for want of jurisdiction, on the ground that it had not been transferred, principally because the decision of 22 December 2014 conclusively determined that that was so.

9. This is, accordingly, a case in which the fact on which jurisdiction depends is also likely to be decisive of the action itself if it proceeds. For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had “the better of the argument” on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192, para 7, this court reformulated the effect of that test as follows:

“(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.”

It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced.'

[33] Insolvency Rules 1986, r.7.55 (now obsolete) read:

'No insolvency proceedings shall be invalidated by any formal, defect or by any irregularity, unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the court.'

The only difference between the version that appears in the 1986 Rules, and the 2016 Rules, is the change in the word 'shall' (r.7.55) to 'will' (r.12.64).

[34] In Morby v Gate Gourmet Luxembourg IV Sarl [2016] EWHC 74, the deputy judge said (after quoting r.7.55 of the Insolvency Rules 1986 - quoted above), at paragraphs 51 to 54:

'This is the current version of a long standing rule. It applies only if there is a formal defect or irregularity. In this case there is no formal defect affecting personal service. Was there an irregularity? In para 61 of his judgment the registrar described the irregularity as being one of “serving a nominated person personally in the presence of and at the direction of the debtor”. I would quibble with the use of the word “serving”, which may have muddied the waters slightly. What happened in this case is that the process server...handed the bankruptcy petition to a third person at the request of [the intended recipient]

In order to determine that some action is “irregular”, it needs to be clear what action is “regular” (ie, within the applicable rule). In the case of personal service, delivery of the relevant document into the hands of its intended recipient would clearly be regular. But satisfaction of the second limb of the Kenneth Allison test would also be regular. Satisfaction of the second limb comes down to a factual determination as to whether (i) the recipient was “told” what the document contains (in the sense elucidated by subsequent authority, as discussed above) and (ii) the document has been “left with or near” the intended recipient.

In our case, on the assumed facts, there is no reasonable doubt that the first limb of the Kenneth Allison test was satisfied. As to second limb, I doubt whether there is a “regular” way to leave a document “with or near” its addressee as opposed to an “irregular” way of doing so. Either the process server has left the document with or near the intended recipient, or he has not. It is a straight factual determination. The question is simply whether giving the document to a third person (as opposed, for example, to putting it on the floor by his feet or on a shelf or table near him or into a flap of a bag at his feet or into a pocket of his coat that is slung across the back of a chair) is capable, as a matter of fact, of falling within the second part of the second limb of the Kenneth Allison test. This is a fact-specific determination. In my view, the registrar correctly concluded that in the particular circumstances of this case the second part of the second limb of the Kenneth Allison test was satisfied.

The only alternative to that conclusion, in my view, is that the second limb of the Kenneth Allison test was not satisfied. But that would have to be because it was not satisfied as a matter of fact, not because it was “irregular”. In such a case, therefore, there would have been a failure to effect personal service on [the intended recipient]. There would, however, be no formal defect or irregularity capable of cure by rule 7.55.'

[35] In Morby v Gate Gourmet Luxembourg IV Sarl [2016] EWHC 74, the deputy judge said that, if he was wrong to hold the delivery (to use a vague term) of the bankruptcy petition at Heathrow could not be characterised as 'irregular', then, on the second part of the test in r.7.55 of the Insolvency Rules 1986:

'...it is not an irregularity that has caused [the intended recipient] any injustice, much less substantial injustice. He was not, as a result of it, deprived of the opportunity to deal with the bankruptcy petition, misled into ignoring it or unable to deal with the subsequent proceedings including the hearing before Mr Registrar Briggs.'  (paragraph 58)

Consequently, he would have held that, had there been 'an “irregularity” wihtin r.7.55, '...the registrar's exercise of discretion to cure the irregularity was appropriate.' (paragraph 59)

[36] To give only a flavour of the law in this area, in Tseitline v Mikhelson [2015] EWHC 3065 ('Tseitline'), the claimant/serving party argued he had effected personal service. But as a back up, if he was wrong about that, he applied for '..an order that, if the attempts at personal service of proceedings on [the intended recipient] were ineffective, any errors be waived or rectified or the attempts be constituted good service or service otherwise be dispensed with.' (paragraph 2). In the event, Phillips J held that there had been effective personal service, so the claimant/serving party's back up application was not required. Phillips J did though, obiter, determine that the claimant/serving party's application would have failed, if he had had to determine it. At paragraph 50, Phillips J said:

'In view of my conclusion above that valid personal service was effected on [the intended recipient] inside the Gallery, [the claimant/serving party's] application does not require determination. It is sufficient to state that, if I had found that [the claimant/serving party's] had failed to effect valid personal service on [the intended recipient], it would not have been appropriate to have dispensed with service under CPR 6.16 (requiring exceptional circumstances) or otherwise have deemed service to have been effected under CPR 6.15 (requiring good reason). Where, as here, a defendant can only be served out of the jurisdiction in accordance with the relevant provisions of CPR Pt 6 (absent valid personal service within the jurisdiction), a [the claimant/serving party] should not be allowed to circumvent those provisions and prevent the defendant challenging the efficacy of any service purportedly effected by that route: see Cherney v Deripaska [2007] I.L. Pr 49 per Langley J at para 53 and the cases there cited. The position is even clearer where, as here, the defendant is domiciled in a Hague Convention State: there will rarely be good reason to circumvent the agreed service process under that Convention, alternative service only being permitted in exceptional circumstances: see Cecil v Bayat [2011] 1 WLR 3086.'