New Clarification on Serving Defendants With a Document by “leaving” It With Them

The High Court has recently 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.

Background Information

This new Clarification on Serving Defendants comes following the case Howard Field v Giovanni del Vecchio

The case involved Claimant Howard Field, brother to and acting administrator of the estate of “post-pop” artist, Duggie Field (deceased in March 2021). 

The Claimant, Mr Field, obtained an order against the Defendant, Giovanni del Vecchio, who was his brother Mr Duggie Field’s partner. 

The order involved Mr del Vecchio, the Defendant, handing over property belonging to Mr Field’s estate, including his artwork collection. 

When the order was not complied with, the Claimant, Howard Field, sought a further order for the immediate delivery of this property, as well as an order that Mr del Vecchio also provide information about the whereabouts of any missing property. At the same time, Mr Field also applied for an order committing Mr del Vecchio to prison for contempt of court.

Clarification on correctly serving documents

Part 81 of the Civil Procedure Rules cites that the Claimant must personally serve the original order and contempt application on the Defendant.

When a defendant will not accept a document that is handed to them, it is still possible to personally “serve” the document. The defendant must be told what the document contains and that the document is left “with or near” them.

How this relates to the Howard Field v Giovanni del Vecchio case

The order was posted through Mr del Vecchio’s letterbox. This was following a process server having spoken to Mr del Vecchio through the door at his residence. The process server explained that the order related to proceedings brought by Mr Howard Field, the Claimant.

Previously, a process server had also attempted to directly deliver the contempt application by hand to Mr del Vecchio on the street. However, it fell on the floor and the Defendant had refused to hold onto it, and ran away. As a result of this, the process server left the document at the front door of the Defendant’s residence.

With this information, 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 that:

  • 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, and that it did not matter that the document was then picked up by the process server and taken to the Defendant’s flat.

What this means for the future

In this case, the courts took a very practical approach to service and recognised the various obstacles that the Defendant had put in place to avoid being served documents. 

The court’s comments may be evidence of assistance in future cases where Claimants are struggling to serve a Defendant but cannot prove that the Defendant is trying to evade service.

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