Bankruptcy – service of the petition – personal service – test to be applied
Mr Morby was adjudged bankrupt. He appealed on the basis that he had not been personally served. The Registrar had not received oral evidence but had, the Deputy Judge found in this appeal, proceeded on the version of events most generous to Mr Morby – namely that the process server passed the petition to a friend of Mr Morby, who read it, attempted to return it to the process server and then put it in the bin. Mr Morby had invited this friend to an appointment specifically made with the process server for the purpose of being served with the petition and the two of them were together when the process server handed the petition to the friend.
The Deputy Judge considered the case law applicable to service of writs and claim forms under the CPR which is to the effect that personal service requires that a document be handed to the person to be served or, if he will not accept it, that he be told what the document contains and the document be left with or near him (Kenneth Allison Ltd v AE Limehouse & Co [1992] 2 AC 105).
In the instant case, on the assumed facts, the document was not handed to the person to be served. But the debtor knew that the document in question was a bankruptcy petition in his own name; had it been left with or near him? The Deputy Judge decided it had been. The fact that it was left in the hands of another person rather than on a table or the floor did not mean that the petition had not been left with the debtor. It could even be said that the petition was left with him given the obvious inference that the debtor could have had the document at any time just by asking his friend for it.
Obiter the Deputy Judge added that he considered the question of service one of pure fact and not one which could be properly characterised as an “irregularity” so as to be susceptible of cure by rule 7.55 of the Insolvency Rules 1986. But, if it was, then it could be so cured as it had caused no injustice to the debtor.The appeal was dismissed.
This case makes clear that the law on personal service is the same as for personal service of other originating processes, as set down in Kenneth Allison Ltd v AE Limehouse & Co [1992] 2 AC 105, and not (as submitted by the debtor) somehow stricter. The question of actual service is one of fact so, if the Court is not able to resolve the dispute on assumed facts, presumably it will have to receive live evidence. If service is contested, practitioners should consider whether to seek an order for the attendance of the debtor to be cross-examined on the final hearing of the petition.
