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Effecting personal service of a bankruptcy petition

In Morby v Gate Gourmet Luxembourg IV Sarl and another [2016] EWHC 74 (Ch), the High Court has helpfully clarified the mechanism by which personal service of a bankruptcy petition can be effected when a debtor is not handed the petition or attempts to evade service.

Mr Morby, the appellant, met with the respondents’ process server so that he could be served with a bankruptcy petition. He attended the meeting with a witness, whose purpose was check the propriety of the petition before service was accepted. Following a discrepancy in the address for service, the witness attempted to return the petition to the process server, who refused receipt. The witness subsequently disposed of the petition in the bin without the appellant handling the petition.

The appellant sought to set aside the bankruptcy order and have the petition dismissed. He argued that the registrar had erred in finding that he had been personally served with the petition in accordance with Rule 6.14 of the Insolvency Rules 1986 (“the Rules”). Further, in so far as the registrar’s decision was in the alternative, he was wrong in law to find that Rule 7.55 of the Rules could be applied to cure defective or irregular personal service. 

Pursuant to Rule 6.14 service on a debtor, “shall be effected by delivering to him a sealed copy of the petition.” No further guidance is provided. In dismissing the appeal the court affirmed the applicability of the two stage test as set out in Kenneth Allison Ltd (In Liquidation) v AE Limehouse & Co [1992] 2 A.C. 105 and further clarified in Tseitline v Mikhelson [2015] EWHC 3065 (Comm). Accordingly, personal service is effected when the document is handed to the person to be served, or where refused, the person to be served with the document is told of its contents and the document is either left with him or near him.

Although the appellant was not handed the petition, he had knowledge of its contents. Further, he had sufficient opportunity to possess the document to enable him to exercise dominion over it. He could have instructed his witness to give it to him or retrieved it from the bin.

Rule 7.55 could also be used to cure an irregularity in personal service depending on the circumstances of the case.

Elizabeth Dwomoh / 11th Feb 2016


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