“Serve a paper and sue me, sue me, what can you do me…” (Nathan Detroit, Guys and Dolls by Frank Loesser)
Litigation is a serious and expensive business. But, just occasionally, it descends into farce. A judge gives a judgment which paints a picture so vivid that you can see the events unfolding, with painful clarity.
Such a case was Tseitline v. Mikhelson [2015] EWHC 3065 (Comm), a decision of Mr Justice Phillips in the Commercial Court.
Now there are those who observe that the Commercial Court has become the preferred forum for trying the squabbles of Russian oligarchs. But with a story like this, it is better than any music hall.
The decision centred around whether the process servers instructed by Mr Tseitline’s solicitors had effectively served Mr Mikhelson with a Claim Form and related documents.
It generates some useful pointers for those of us who may be trying to effect personal service of important documents on a reluctant quarry. It also provides a few chortles.
The dispute was about the commercial development of real estate in St Petersburg.
Mr Mikhelson was the founder and President of the V-A-C Foundation. He lived in Moscow and rarely travelled to the UK. He was said neither to speak nor understand English.
However, in October 2014, he flew by private charter to London to attend the opening of an exhibition organised by the Foundation at the Whitechapel Gallery. He met up with his daughter, Victoria who did speak fluent English because she was based in New York. He also arranged to meet with an interpreter and the director of the Foundation.
When he got to the gallery and emerged from his chauffeur driven car, he was approached by two process servers, Mr Austin and Mr Harber who had an envelope containing the documents issued by Mr Tseitline’s solicitors. They were equipped with a covert camera.
Mr Austin said “I’m here to serve you papers as part of a High Court, a High Court claim…” There was apparently a brief period where Mr Mikhelson was holding one side of the envelope and Mr Austin the other but Mr Austin did not let it go.
Following some form of inquiry in Russian to Victoria, Mr Mikhelson decided to let it go and Mr Austin was left holding the baby, the music having stopped.
Mr Austin and Mr Herber then followed Mr Mikhelson into the gallery where, by some means or other, Mr Herber managed to place the envelope in between the crook of his arm and his body where it lodged. Mr Mikhelson then let the envelope drop to the floor.
Mr Herber picked it up and contrived to put it between Victoria’s back and her shoulder bag where it once again lodged until once more dropped to the floor.
Mr Mikhelson and his entourage appear to have then made it clear that no-one was to have anything more to do with it. So the process servers picked up the envelope and left.
Mr Mikhelson’s lawyers sought to argue that he had not been properly served with the documents.
The relevant law is that there is no magic or mumbo-jumbo to the process of effective service. The document does not need to be touched or retained by the recipient. It does not need to tap him three times. It needs to be handed to the recipient but if he will not accept it, the process server may tell him what the document contains and leave it, either with him or near him.
The issues here were (i) whether a document can be accepted if its nature is not apparent when delivered – answer: “no”; (ii) whether a document is “left” if it is taken away subsequently by the process server – answer: “yes” and (iii) whether the recipient need understand the explanation of the document – answer: “yes”.
Applied to the facts here, the judge decided that:
- Mr Mikhelson was not served outside the gallery because Mr Austin did not in fact relinquish control of the document
- Mr Mikhelson was served with the document inside the galley because it was placed on his upper body and Mr Harber had relinquished control. The fact that he regained control and lodged it under Victoria’s bag strap did not affect this.
- Most interestingly, the judge found that Mr Mikhelson did know what the documents were despite his rudimentary English. The judge inferred that he had been told this by his companions and this explained his reluctance to engage with the process. His conduct in trying to evade service was telling in ensuring that service was effective.
To treat an envelope that you are told contains court proceedings as though it is the bearer of a highly contagious disease or is likely to confer the mark of the black spot, is scarcely ever advisable. You need to evade service more subtly if that is what you really want to do. Such appears to be the lesson of the Whitechapel Gallery farce.
