Nowhere to run: why a document can be "left" with a defendant and still be served in the right way

The High Court has clarified what it means to personally serve a defendant by "leaving" a document with them and confirmed that the court has jurisdiction to make an order obliging a defendant to reveal the whereabouts of missing property.(1)

The Claimant's brother was the deceased "post-pop" artist Duggie Field. The Claimant obtained an order against the Defendant, Mr Field's partner, obliging the Defendant to hand over property belonging to Mr Field's estate including his artwork. When this order was not complied with, the Claimant sought a further order for the immediate delivery of this property, as well as an order that the Defendant provide information about the whereabouts of any missing property. The Claimant also applied for an order committing the Defendant to prison for contempt of court. 

Service

Part 81 of the Civil Procedure Rules obliged the Claimant to personally serve the original order and contempt application on the Defendant. Where a defendant will not take a document handed to them, it is still possible to personally serve the document if the defendant is told what the document contains and the document is left "with or near" them.²

In this case:

•  The order was posted through the Defendant's letterbox, after a process server had spoken to the Defendant through the door at his flat and explained that the order related to proceedings brought by the Claimant.
  
  
• A process server had attempted to hand the contempt application to the Defendant on the street, but it fell onto the floor as the Defendant refused to hold onto it, and the Defendant ran away. The process server then left the document at the front door of the Defendant's flat. 

The court decided that both documents had been validly served because the process server had explained that they were serving documents connected to legal proceedings and:

• The order was left as close to the Defendant as possible when it was posted through the door, the process server having just spoken to the Defendant through the door.
  
  
• The contempt application was left near the Defendant as it touched him before falling to the floor. It did not matter that the document was then picked up by the process server and taken to the Defendant's flat. 

Whilst it was not necessary for the court to consider whether it was appropriate to make an order that personal service was not required, it did comment on the circumstances in which it might be appropriate for such an order to be made. In the consultation paper which preceded the current Part 81 of the CPR, it was suggested that a court could only make an order dispensing with personal service if the defendant was evading service or was already fully aware of the contempt application. The court in this case favoured textbook commentary which suggests that the court can make such an order in broader circumstances, where it is just for the court to do so. 

Disclosure of the whereabouts of assets

The court had jurisdiction to order the Defendant to deliver up Mr Field's property under section 3² of the Torts (Interference with Goods) Act 1977, but it was unclear whether the court could also order the Defendant to provide information about any missing property.

The court decided that there were two jurisdictional bases for it to make such an order:

• The court has equitable jurisdiction to order third parties to provide information to enable a claimant to locate assets, pending the determination of the claimant's claim. This case was different from the typical case in which such orders are made because the court had already decided that the Claimant was entitled to the assets, and the party from whom the information was being sought was the defendant, not a third party. However, the court decided that the underlying justification for making such an order was the same: in both situations the orders were necessary to enable assets to be identified and preserved.
  
  
• The power under section 37¹ of the Senior Courts Act 1981 to grant injunctions. The court drew an analogy with another case, in which the court made an order under that section obliging the Defendant to surrender himself to the police and provide an affidavit detailing his assets, as a condition of being permitted to continue defending the claim against him.³

Contempt  

A person is in contempt of a court order and can be committed to prison if they (i) knew of the terms of the order; (ii) acted or failed to act in a manner which breached the order; and (iii) knew of the facts which made their conduct a breach of the order. 

The court in this case decided that the Defendant was in contempt. The process server had explained what was being served, the Defendant had not complied with the order, and he had deliberately not allowed the Claimant's agents to collect the property subject to the order. The court confirmed that it is not necessary to show that the Defendant knew that his acts did, as a matter of law, breach the order. 

Commentary

Clearly, the court is willing to take a practical approach to service and recognise the obstacles defendants can put in place to avoid the service of documents. This decision follows other decisions in respect of service and is part of a broader trend of the court permitting service by alternative methods, such as by Non-Fungible Tokens.⁴

The court's comments in respect of the circumstances in which personal service may be dispensed with may assist claimants in future cases who are struggling to serve a defendant but cannot prove that the defendant is trying to evade service.

In deciding that it had the power to make an order obliging the Defendant to disclose the whereabouts of assets, the court has confirmed that it has a robust suite of powers to support a claimant's recovery of assets. 

¹Howard Field v Giovanni del Vecchio [2022] EWHC 1117 (Ch) and [2022] EWHC 1118 (Ch)
²Gorbachev v Guriev [2019] EWHC 2684 (Comm)
³JSC BTA Bank v Ablyazov (No. 8) [2013] 1 WLR 1331
⁴D’Aloia v (1) Persons Unknown (2) Binance Holdings Limited & Others [2022] EWHC 1723 (Ch)