18/10/2019

Close enough: personal service when faced with personal security

Gorbachev v Guriev [2019] EWHC 2684 (Comm)

Paul Lowenstein QC and Tony Beswetherick successfully acted for the Claimant in defeating an application by the Defendant (a wealthy Russian national) who sought to argue before the Commercial Court in Manchester that he had not been validly served with legal proceedings when he was temporarily within the jurisdiction because they had not been left with or near him—because they were dropped at the feet of one of his close security personnel—and because he had not understood the nature of their contents.

The essential facts were that the Claimant’s process server approached the Defendant as he exited a building in Mayfair in London and, although he came close to the Defendant and addressed him by name, he was prevented by the Defendant’s close protection personnel from moving closer to the Defendant. The service documents were therefore deposited on the ground by the Defendant’s car.

The authorities on personal service make clear that service may be effected even if the defendant does not accept the documents, provided that he is told what they contain and they are left “with or near” him (e.g. Kenneth Allison Ltd v A E Limehouse & Co [1991] 3 WLR 671).

In this case, the court was required to engage directly with the application of the requirement for documents to be left “with or near” a defendant in circumstances where the intervention of personal security personnel prevents the process server from getting access to the defendant.

In reaching its decision that service was valid, the Court held that it was unsurprising that a wealthy individual such as the Defendant would have personal security when on the streets of London, whose role it would be to protect him from unwanted contact with others and to prevent him from being served with court proceedings. In light of that and taking into account the evidence (including video and audio) before it, the Court had no hesitation in concluding that, once they had appreciated that he was seeking to effect service, the individuals accompanying the Defendant tried to prevent the process server from getting any closer to him. The consequence was that the process server got as near to the Defendant as he could have done without a violent incident or risking his own safety.

As a result, the Court accepted that the court documents were left “with or near” the Defendant since the process server released them as close to the Defendant as was possible given the intervention of the security personnel. Given this and rejecting, on the evidence, the Defendant’s assertion that he had not understood the nature of the documents, the Court held that service was therefore effective.

Paul and Tony were instructed by Andrew Lafferty, Daniel Hayward and a team at Fieldfisher.

Read the judgment.